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HomeMy WebLinkAbout05-2325 , PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ" Id, No, 32227 FRANCIS S, HALLINAN, ESQ" Id, No, 62695 ONE PENN CENTER PLAZA, SUITE] 400 PHILADELPHIA, PA 19103 (215) 563-7000 W ACHOVIA BANK NA, F/K1A FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE. MILWAUKEE, WI 53224 ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff TERM NO. OS' -.:2.3:15 CI~~ l~ UL"'l v, CUMBERLAND COUNTY JOSEPH W, MllIOLIC 21 KINGSWOODDRNE MECHAINCSBURG, P A 17055 Defendant CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE NOTICE You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action wilhin twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and tiling in writing with the court your defenses or objections 10 the claims sel forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complainl or for any other claim or reliel' requested by Ihe plaintiff You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA Vl A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER, IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMA nON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE, Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle. P A 17013 (800)990-9] 08 Fik #: ] 16073 , File #: 116073 IF THIS IS THE FIRST NOTICE THAT VOlI IIA VE RECEIVED FROM THIS OHICE. BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. ~ 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. I. Plaintiff is W ACHOVIA BANK N.A" F/KJA FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE. MILWAUKEE, WI 53224 2, The name(s) and last known address(es) of the Defendant(s) are: JOSEPH W, MlliOLIC 21 KINGSWOOD DRIVE MECHAlNCSBURG, P A 17055 who is/are the mortgagor(s) and real owner(s) of the property hereinafter described, 3, On 10/14/1982 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to CUMBERLAND VALLEY SAVINGS & LOAN ASSOCIATION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book: 715, Page: 731, PLAINTIFF is now the legal owner of the mortgage and is in the process of fonnalizing an assignment of same, 4, The premises subject to said mortgage is described as attached, 5, The mortgage is in default because monthly payments of principal and interest upon said mortgage due 01/01/2005 and each month thereafter are due and unpaid, and by the tenns of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith, file#: 116073 6, The following amounts are due on the mortgage: Principal Balance Interest 12/01/2004 through 05103/2005 (Per Diem $ L 84) Attomey's Fees Cumulative Late Charges 10114/1 982 to 05103/2005 Cost of Suit and Title Search Subtotal $17.178.86 283,36 1,250,00 53,43 $ 550,00 $ 19.3]5,65 Escrow Credit Deficit Subtotal 0,00 561.44 $ 56],44 TOTAL $ 19,877.09 7 The attomey's fees set forth above are in conformity with the mortgage documents and Pennsylvania law, and will be collected in the event of a third party purchaser at Sheriffs Sale, If the Mortgage is reinstated prior to the Sale, reasonable attorney's fees will be charged, 8, Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by Ihe mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency, '), This action does nOI come under Act 6 of 1974 because the original mortgage amount exceeds $50,000, WHFK EFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $ 1 '.1,877,09, together with interest from 05/03/2005 at the rate of $1 ,84 per diem to the date of Judgment, and other cosls and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property, PHELAN HALLINAN & SCHMIEG, UP ~h~J~ ~, By: /s/;;(/nhs-s, Hallinan LA WRENCE T. PHELAN, ESQUIRE FRANCIS S, HALLINAN, ESQUIRE AtIomeys for Plaintiff Filc#: 1!6073 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land, situate in Mechanicsburg. Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a poinl on the Northern side of Kingswood Drive which point is also the dividing line of Lots Nos, 20 and 21, Block D, on the hereinafter mentioned Plan of Lots; thence along said dividing line North 10 degrees 23 minutes West a distance of I 19,98 feet to a point at the dividing line of Lot No, 20, Block C, and Lot No, 14, Block D; thence along said dividing lines North 79 del,'fees 37 minutes Easl 70,0 feet to a point; thence along the dividing line of Lots Nos, 20 and 19, Block D, on the hereinafter mentioned Plan of Lots South 10 degrees 23 minutes Easl a distance of 1 19,98 feet to a point on the Northern side of Kingswood Drive; thence along the Northern side of Kingswood Drive South 79 degrees 37 minutes Wesl a distance of70,0 feet to a point and place of BEGINNING, BEING Lot No, 20, Block D, on the Fina] Plan of Part of Blocks B, C, D, G and H, Wynnewood Park as recorded in the Office of the Recorder of Deeds in and for Cumberland County in Plan Book 30, Pagc 116, UNDER AND SUBJECT to a 25 feet building set back line, BEING THE SAME PREMISES which W,D,c. Inc" a Pennsylvania Corporation, by its Deed dated January 20, 1980, and recorded July 15, ] 982, in the Office of the Recorder of Deeds in and for Cumberland Counly, Pennsylvania, in Deed Book 29 Y, Page 563, granted and conveyed unto Steven M, Claus and JeaneIte M, Claus, his wife, PREMISES: 21 KINGSWOODDRIYE File #: J 16073 . , VERIFICATION FRANCIS S, HALLINAN, ESQUIRE hereby states that he is attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and or the verification could not be obtained within the time allowed for the filing of the pleading, that he is authorized to make this verification pursuant to Pa, R, C, p, 1024 (c), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of its knowledge, information and belief Furthermore, it is counsel's intention to substitute a verification from Plaintiff as soon as it is received by counseL The undersigned understands that this statement is made subject to the penalties of 18 Pa, c. S, Sec, 4904 relating to unsworn falsifications to authorities, h) 1tL- Francis S, Hallinan, Esquire Attorney for Plaintiff f~/2\t': DATE: 'J V J ~ (j .-> CJ ~ \-> .;;"..J p C:.:. c:':" """ f'.~ lrt. 0'" .-1 Y\ :J~ :(."" \l ')::.." ".t~. -":' C.f\ \ -~? \-~-\- (:j "L :t C>- d' ~_. \.,) - ::.,..:. ",.-. .- 'D ~ ~~'~: _,_"':"'J \.,,\'1'~, W 'Q :;.\\"-il ~ (5 ;V r .,v \ ~ 1-' , c,) :j2 C> 1: -~ C) SHERIFF'S RETURN - REGULAR CASE NO: 2005-02325 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WACHOVIA BANK NA VS MIHOLIC JOSEPH W GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon MIHOLIC JOSEPH W the at ABC BOWLING , at 1500:00 HOURS, on the 11th day of May 6454 CARLISLE PIKE , 2005 DEFENDANT MECHANICSBURG, PA 17055 by handing to JOSEPH W MIHOLIC a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof, Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18,00 7,40 .00 10,00 ,00 35,40 ,rg~~~~/~ R, Thomas Kline 05/12/2005 PHELAN HALLINAN SCHMIEG me this p /.3- day of By: A~~ J~~. -k. Deputy S ~ff Sworn and Subscribed to before ~ :J.# .( A,D, ~i.</O ~ ~ rothonotary , PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215\ 563-7000 W ACHOVIA BANK, N.A. F/K/A FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVENUE MILWAUKEE, WI 53224 CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff, v. NO. 05-2325 JOSEPH W. MIHOLIC Defendant(s). PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against JOSEPH W. MIHOLIC , Defendant(s) for failure to file an Answer to Plaintiff's Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess Plaintiff's damages as follows: As set forth in Complaint Interest from 5/4/05 to 6/17/05 TOTAL $19,877.09 $82,80 $19,959.89 I hereby certify that (I) the addresses of the Plaintiff and Defendant( s) are as shown above, and (2) that notice has been given in accordance with Rule 237,1, copy attached, DAMAGES ARE HEREBY ASSESSED AS INDIC~, DATE:, L.\E. ;)..9 ~ /J-i--~? I PROPROTHY ~ " PHELAN, HALLINAN AND SCHMIEG By: Francis S, Hallinan, Esq" Id, No, 62695 One PelUl Center Plaza, Suile 1400 Philadelphia, PA 19103 (71 'i) 'i(;,-7000 W ACHOVIA BANK NA, FIK/ A FIRST UNION NATIONAL BANK ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS Plaintiff : CIVIL DIVISION Vs, : CUMBERLAND COUNTY JOSEPH W, MIHOLIC Defendanis : NO, 05-2325 TO: JOSEPH W. MIHOLIC 21 KINGSWOOD DRIVE MECHAINCSBURG, P A 17055 FILE COpy DATE OF NOTICE: .JHNF 1 2005 THIS FIRM IS A DEBT COLLECTOR ATIEMPTING TO COLLECT A DEBT. THIS NC I YOU IN AN ATIEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO IlTF INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURl"); PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDL' SHOULD NOT BE CONSTRUED TO BE AN ATIEMPT TO COLLECf A DEB', ENFORCEMENT OF LIEN AGAINST PROPERTY, 1'0 jy IE ,D \S IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPE.A" ' PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFFH> I' OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU, UNLESS YOU ACT WITHIN 'IE! DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEA" MAY LOSE YOUR PROPERTY OR OTHER IMPORT ANT RIGHTS, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT ,', GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE Y\' INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MA Y BE ABLE TO pC< , . INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PEl, REDUCED FEE OR NO FEE E CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTy BAR ASSOCIA nON 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (800)990.9108 -, FRANCIS S, HALLE';', Attorneys for Plaintill PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 ATTORNEY FOR PLAINTIFF W ACHOVIA BANK, N.A. F/K/A FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVENUE CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff, v. NO. 05-2325 JOSEPH W. MIHOLIC Defendant(s). VERIFICATION OF NON-MILITARY SERVICE DANIEL G, SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended, (b) that defendant JOSEPH W. MIHOLlC is over 18 years of age and resides at, 21 KINGSWOOD DRIVE, MECHANICSBURG, PA 17055. This statement is made subject to the penalties of 18 Pa, C.s, Section 4904 relating to unsworn falsification to authorities, .---'-'-..--. '--- \~~,~~~~~\ Attorney for Plaintiff I / t ~ (::l "6G- ~ -:-G 0 ..., c c;;:) 0 () = 2- en .." r'; -r.' ;=:-~, '- ~:n ..... ~ 0 t.r\(: c: r f'- ...;.~ ~-;:'1 :z: n'.- zr Ir) ~f:! ?),,[~. N -om ~ \D S~ ~ ~C. ~~ ;F:c ~ +1~ oLe: ~B r 'i>c~ ? -m ~ "-I .r:- 2J5 w '< (Rule of Civil Procedure No. 236) - Revised IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW W ACHOVIA BANK, N.A. FIKJA FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVENUE CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff, v. NO. 05-2325 JOSEPH W. MIHOLIC Defendant(s). Notice is given that a Judgment in the above-captioned matter has been entered against you on ~I Lt )r:, ,;/ g 20~ ~: L2~&_P7l~ DEPUTY If you have any questions concerning this matter, please contact: ~-~.~ ',\, (1..\ L G, SCHMIE Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN S ON 1617 JOHN F, KENNEDY BLVD" SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 -'THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMA nON OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED. THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY," (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P.3180-3183 W ACHOVIA BANK, N.A. FfKlA FmST UNION NATIONAL BANK Plaintiff, v. No. 05-2325 JOSEPH W. MIHOLIC Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due $19,959,89 Interest from 6/17/05 to DECEMBER 7, 2005 (per diem -$3,28) $597.44 and Costs TOTAL $20,527,33 , \Ckvv-> EL Q, SCHMI , ESQUIRE One Penn Center at Suburban Station 1617 John F, Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property, No. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale, The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. .. III III Q r- .... < ~ g ;:l = '" u ~ = u ~ r...:$ Z ~ 0 r-l' OZ ~ ... ",< ... 13 <> ;:l ~...l s::~ U ~ ...l>< u ~'E' ~ "' ~'" <~ ... ~ 0) ZZ ...l ~ ~ 0 ~ o~ ~= 0 r.. Q 0 :>. = 0;:; S ~~ <~ .. ~ ... ... .. ~ ~ ~ &l~ '" "' 'Z " ... o~ Zo .; ~ 0) uz ~E:: .. ~~ ~ g. r..;:l = ~~ p,. ~< 0) 00 ~ 01:: .... l) ...u =Z ~ :~ N ~ <Z '" ~~ 0 ;:l~ ...0 ~ "' ... "' >... ... f7 0) 8;1 OZ u ~ 1 =;:l ~ ~~ u ,~ < == < ...~ ~ ~ Z;:l ...u Jl + .~ 3 ~, (") ~ -I-7-fi; a: .::r W -~ 5 c') qi-Q - - ::: ~ ~ C ;,"",,)-$ , , w-. x: 'J~ ~ ~ S26 ~ , - :13 - :: , - H::c - - ~ ~ ~o 0\ '.,:-::0) ~CJ {J ...j C)j cc N ,J_~ .:::r-- ...... WO- :z: ;,lj(:b I dw :::> I .() () u..:c -, tOO- D I ~ I- U"> ~~ '::r e () ~ ::r <J L" ::> u- = <.:l {) () () 0 ~ ~ 0 = -.: ~ ~ If) ~ ()-- "(l ~ 'i'>r ':L lo <::J ~01) - ..... 1>,- DESCRIPTION ALL THAT CERTAIN piece or pareel of land, situale in Me.:hanicsburg. Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING al a point on the NonIIem side of Kingswood Drive which point i. also the dividing line ofLt.>ts Nos. 20 and 21, Block D, on lbe hereinafter mentioned Plan of Lots; thence along said dividing line North 10 degrees 23 minutes WeSi adislllllce ofll9,98 feet to a point a! die dividing line of Lot No, 20, BlockC, and LolNo. 14, Block D; then<:e along said dividing lines North 79 degrees 37 minutes Wi 70,0 feet to a point; tbence along the dividing fine ofLo1s Nos, 20 and \9, Block D, on die hercinaJler mentioned Plan of LQts Sooth 10 degrees 23 minutes Ea5la distance of 119,98 reet to a point on die Northem side of Kingswood Drive; theoce along lhe Northern side of Kingswood Drive Soulh 79 degrees 37 minutes Wesl 8 dislance of 70,0 feel to a point and place of BP-G INN lNG, BEING Lot No, 20, Block D, on Ihe Final Plan of Pan of Blocks 8, C, D. G and H, WyIIIlewood Parle as recorded in the OffICC of the Recorder of Deeds in and for Cumberland Counl)' in Plan Book 30, Page 116. TITLE TO SAID PREMISES IS VESTED IN Joseph W, Miholic, Single Man by Deed from Steven M, ClllUS and Jeanene M. Claus, his wife, by dleir duly constituted Attorney-in-facl, Anna F, Miller, dated 1ll-14-82, f<lCorded 10-14-82 in Deed Book 29-X. page 979. Premises: 21 Kingswood Drive, Mechanicsburg, P A 17055 WRIT OF EXECUTION andlor ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 05-2325 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due WACHOVIA BANK, N.A. F/KJA FIRST UNION NATIONAL BANK, Plaintiff (s) From JOSEPH W. MIHOLIC (I) You are directed 10 levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION (2) You are also direcled 10 attach the property of the defendanl(s) nollevied upon in the possession of GARNISHEE(S) as follows: and to notify Ihe gamishee(s) that: (a) an attachment has been issued: (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendanl(s) not levied upon an subject 10 attachment is found in the possession of anyone other Ihan a named garnishee, you are direcled to nolify him/her thai helshe has been added as a garnishee and is enjoined as above stated. AmountDue $19,959.89 LL $,50 Inlerest FROM 6/17105 TO 1217105 (PER DIEM - $3.28) - $597.44 AND COSTS Atty's Comm % Due Prothy $1.00 Arty Paid $117.04 Other Costs Plaintiff Paid Dale: JUNE 29, 2005 CURTIS R. LONG (Seal) prothon& f? L?J ~: IV>. p , ~17 /1/ /" J Deputy REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE Address: ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No, 62205 W ACHOVIA BANK, N.A. FIK/A FffiST UNION NATIONAL BANK CUMBERLAND COUNTY Plaintiff, COURT OF COMMON PLEAS v. CIVIL DIVISION JOSEPH W. MIHOLIC NO. 05-2325 Defendant(s). AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No, I) WACHOVIABANK. N.A. F/K/A FIRST UNION NATIONAL BANK, Plaintiff in the above action, by its attorney, DANIEL Q, SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at 4! KINGSWOOD DRIVE. MECHANICSBURG. P A 17055 . I. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) JOSEPH W. MIHOLIC 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 2, Name and address ofDefendant(s) in the judgment: Same as above 3, Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None MEMBER 1 ST FEDERAL CREDIT UNION 5000 LOUISE DRIVE MECHANICSBURG, PA 17055 4, Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 5, Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6, Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale, Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7, Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 Domestic Relations of Cumberland County 13 North Hanover Street Carlisle, PA 17013 Commonwealth of Pennsylvania Department of Welfare PO Box 2675 Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief, I understand that false statements herein are made subject to the penalties ofl8 Pa. C,S, Sec, 4904 relating to unsworn falsification to authorities, June 21. 2005 DATE \~~ G, SCHM E Attorney for Plaintiff \ C ,ESQ~ I ) ~/ o c: "ot~ n'-l""_:' ;!.,{~< 7'",", . UJ 1'_ ~t:'_-: :i>C ZC' >C~;! z :;! .~ ,.., = = """ <- c: 7': N u:> o .." ~ f,,:n -Om ;110 01- s:'o -, - ..,' Q_D /-~~ c> ~ en -< :roo ::r.: '2 :- w PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPIDA, PA 19103-1814 (215) 563-7000 ATTORNEY FOR PLAINTIFF W ACHOVIA BANK, N.A. F/K/A FIRST UNION NATIONAL BANK CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff, v. CIVIL DIVISION JOSEPH W. MIHOLIC NO. 05-2325 Defendant(s). CERTIFICATION DANIEL G, SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that the premises are not subject to the provisions of Act 91 because it is: o an FHA mortgage () non-owner occupied () vacant (X) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa, C,S, Section 4904 relating to unsworn falsification to authorities. ,~ "\ Q~ ' , " \) - ,Lo \; ,::::\'\,\.\2)- / ~IEL G, SCHMIE ,ESQUIRE 5-,\/ Attorney for Plaintiff () o c -~ . l.lo.; ~'S""'i Zr' ~t~ )>- z[-.<' 0:;; ../ '-'c Z =2 "" = = <;,n <- c::: :z N U> > :x '2 .:::- .r:- o " ~ fl:i:n .-- ::urn .09 gC) --.i:#"; o:!J ;:;;,0 --Ii' ~ 5:i -< '; '\ HANK,N.A. F/KIAFIRST UNION HANK CUMBERLAND COUNTY Plaintiff, No. 05-2325 . j \\ MIHOLIC Defendant(s). June 21, 2005 \\ '~,F;PH W. MIHOLIC i idNGSWOOD DRIVE .j i:CHANICSBURG, P A 17055 :/is FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION : lLL BE USED FOR THA T PURPOSE IF YOU HA VE PREVIOUSLY RECEIVED A DISCHARGE IN , " . r AND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE i TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. ** ";ur house (real estate) at. 21 KINGSWOOD DRIVE. MECHANICSBURG. PA 17055. is i to be sold at the Sheriff's Sale on DECEMBER 7, 2005 at 10:00 a,m, in the Cumberland 'lI'rthouse, South Hanover Street, Carlisle, P A 17013, to enforce the court judgment of .:~,;'J.,btained by W ACHOVIA BANK. N.A. F/K/A FIRST UNION NATIONAL BANK (the 'C .\ against you. In the event the sale is continued, an announcement will be made at said sale in l":C with Pa,R.C,P" Rule 3129,3, NOTICE OF OWNER'S RIGHTS " \ BE ABLE TO PREVENT THIS SHERIFF'S SALE I, ,I prevent this Sheriff's Sale, you must take immediate action: ., The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due, To find out how much you must pay, you may call: (215) 563-7000. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered, You may also ask the Court to postpone the sale for good cause, You may also be able to stop the sale through other legal proceedings, You may need an attorney to assert your rights, The sooner you contact one, the more chance you will have of stopping the sale, (See notice on page two on how to obtain an attorney,) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. I. If the Sheriff's Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000, 2, You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property, 3, The sale will go through only ifthe buyer pays the Sheriff the full amount due in the sale, To find out if this has happened, you may call (717) 240-6390. 4, If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened, 5, You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer, At that time, the buyer may bring legal proceedings to evict you, 6, You may be entitled to a share ofthe money which was paid for your house, A schedule of distribution ofthe money bid for your house will be filed by the Sheriff within 30 days ofthe sale, This schedule will state who will be receiving that money, The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed, 7, You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff, It mav not be sold in the absence of a representative of the plaintiff at the Sheriffs Sale, The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale, CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 249-3166 DESCRIYTION . i L", r CERT AlN piece or pareel of land, situale in Meelumicsburg, Cumberland CornU)', .. ,anl', more particularly bounded and described as follow., 10 wit: tiN ING al a point on the Northern side of Kingswood Drive which poinl i. also the dividing : uts Nos, 20 and 21, Block D, on Ihe hereinal\er mentioned Plan of loIS; lhe""" along,", id "'I' line North 10 degrees 23 minutes West a diSlancc of 119,98 fecllO a point al die dividin~; : I"~, No. 20, BlockC, IIIId LntNo. 14, Block D; thence along said dividing lines North 79 \ '} minutes F..ast 70,0 feet to a point; thence along the dividing line of Lots Nos. 20 and ,9 , 0n the hereinafter mentioned Plan of Lots South I 0 degrees 23 minutes Easl a distance (), if:0t 10 a poinlon 1IIe Northem side of Kingswood Drive; thence along Ihe Northern .ide ,.! 'I', '''"od Drive South 79 degrees 37 minutes Wesl a distance of 70.0 feel 10 a point and place or iNING, , LO! No, 20. Block D, on the Final Plan of Part of Blocks B, C, D, G and H, Wynnewood hJrk ,.'(Ied in Ihe OffICe of the. Recorder of Deeds in and for Cumberland Count)' in Plan Book',!), ;6 r\l SAID PREMISES IS VESTED IN Joseph W. Miholic, Single Man by Deed from SIehl' ,I, and Jeanene M, Claus, bis wife, by tbeirduly constituled Attorney-in-facl, Anna F. Milk, , ",' 1'1-82, recorded 10-14-82 in Deed Book 29-X, page 979, ,LS 21 Kingswood Drive, Mechanicsburg, P A 17055 o c:: Z \'_'~':'I Q)i: : ~/;.- V};.:;:;', ~~: Z ~~ . t-J = c-' CJ' '- c:: z r-.> \SJ ~ ~~ .,,~ -0'6 " b _J ::;1 ~..\ --,-~-n S~J~ f"5 ';-t ~ """ ~ '? ;;:- s:- AFFIDAVIT OF SERVICE PLAINTIFF WACHOVIA BANK, N.A. F/KJA FIRST UNION NATIONAL BANK CUMBERLAND COUNTY SMC No. 05-2325 DEFENDANT(S) JOSEPH W. MIHOLlC AC:CT. #0000155990 SERVE JOSEPH W. MffiOLlC AT 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 Type of Action - Notice of Sheriffs Sale Sale Date: DECEMBER 7,2005 SERVED J.-,. Served and made known to -:l;';) e f \" ~ \ M', ko \ i t, Defendant, on the 1(; day Of~, 200SS-- at~, O'c1ockd.,m., at e;J.. J j(; ....~~ l.k~ d. Q)",. ~ DJed...&1U \ C s 10.:. v, , Conunonwealth of Pennsylvania, in the manner described below: -+-Defendant personally served, Adult family member with whom Defendant(s) reside(s), Name and Relationship is Adult in charge ofDefendant(s)'s residence who refused to give name or relationship, Manager/Clerk of place oflodging in which Defendant(s) reside(s), Agent or person in charge of Defendant( s)' s office or usual place of business, an officer ofsaid Defendant(s)'s company, ___ I " lin ' .,f tJ.. ':J~,s.., Description: Age ~ Height 5/tl Weight JlS- Race ~ Sex ~ Other '0'" c.t ~'fo- I, ~~lNC.~ L. Gd.~ I~ompetent adult, being duly sworn according 1tO law, depose and state that I personally handed a true and correct copy of the No ce ofShenff's Sale III the manner as set forth herem, Issued m the captioned case on the date and at the address indicated above, Other: Sworn to and sir~ before me this 9!ll'.. of ',-:L T'200~~ No~ By: ~PTSER ATLE NOIMML8L WCIJ.E ~ CARTY.::J.. PlMc "- =... f:r~, OF ,,","'CE "",""",,0. NOT SERVED On the day of , 200~ at o'clock _.m., Defendant NOT FOUND because: Moved Unknown No Answer Vacant l't Attempt: / / Time: 2nd Attempt:_ / / Time: 3rd Attempt: / / Time: Sworn to and subscribed before me this _ day of , 200 _' Notary: By: Attornev for Plaintiff Daniel G. Schmieg, Esquire - 1.0. No. 62205 2 ,..., 0 COO,":> = ''I' C.n \'"~ -~ .. c:' .,.. -~~. c:l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA W ACHOVIA BANK N,A" F/K/A FIRST ) CIVIL ACTION UNION NATIONAL ) vs, JOSEPH W, MIHOLlC ) CIVIL DIVISION ) NO, 05-2325 AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ) ) SS: I, DANIEL G, SCHMIEG, ESQUIRE attorney for W ACHOVIA BANK N,A" F/K/A FIRST UNION NATIONAL hereby verify that on 6/29/05 true and correct copies of the Notice of Sheriffs sale were served by certificate of mailing to the recorded lienholders, and any known interested party see Exhibit "A" attached hereto, .' -E/' DANIEL G, SCHMIEG, ESQUIRE-:J Attorney for Plaintiff DATE: November 3, 2005 h.\UIO\'(,,, BANK, N.A. F/KIA FIRST UNION \ATIONAL BANK CUMBERLAND COUNTY Plaintiff, COURT OF COMMON PLEAS CIVIL DIVISION IOSEPH \V, MIHOLIC NO, 05-2325 Defendant(s). AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. I) }\ ACHOVIA BANK. N.A. F/K/A FIRST UNION NATIONAL BANK, Plaintiff in the above action, hy its 'lttorney, DANIEL Q, SCHMIEG, ESQUIRE, sets forth as ofthe date the Praecipe for the Writ of b~c\\t\On was filed the following information concerning the real property located at.ll. ,~INGSWOOD DRIVE. MECHANICSBURG. PA 17055. tnd address ofOwner(s) or reputed Owner(s): -.,ic'.1(tC Last Known Address (if address cannot be reasonably ascertained, please indicate) JOSEPH W, MIHOLIC 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 '\"me and address ofDefendant(s) in thc judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: ;'~djnC Last Known Address (if address cannot be reasonably ascertained, please indicate) "\Ofit' MF:MBER 1ST FEDERAL CREDIT UNION 5000 LOUISE DRIVE MECHANICSBURG,PA 17055 j "bmc and address oflast recorded holder of every mortgage ofrecord: :'_dlri(' Last Known Address (if address cannot be reasonably ascertained, please indicate) ,,",one ""'fl" :md address of every other person who has any record lien on the property: ''':ink Last Known Address (if address cannot be reasonably ascertained, please indicate) 'i,'lH' (, >iamc and address of every other person who has any record interest in the property and whose mt,?"c:Sl may be affected by the sale, --',1 ~t~-i1C Last Known Address (if address cannot be reasonably ascertained, please indicate) ~OI;(, .1 "DC and address of every other person of whom the plaintiff has knowledge who has any interest in : i" .. ,'pefty which may be affected by the sale: ,":( Last Known Address (if address cannot be reasonably ascertained, please indicate) f', ,1'IUOCcupant 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 (h'mestic Relations of Cumberland County 13 North Hanover Street Carlisle, P A 17013 COlllnlonwealth of Pennsylvania Department of Welfare PO Box 2675 Harrisburg, P A 171 05 ! verify that the statements made in this affidavit are true and correct to the best of my personal 1.1i(. vledge or information and belief, I understand that false statements herein are made subject to the pelJ2!lies ofl8 Pa, C,S, Sec, 4904 relating to unsworn falsification to authorities, ,L'm" lL 2005 DA l'F \~v....0 G, SCHM E Attorney for Plaintiff <: ,ESQ~ ~ "'-' ~.€. ~ ~z V> ~~ ~" ~s, if> l ..... ... ..... w ",--,~ 0 g~ ~<~ ~ ;~ ~ .." :I: ~i ~ ~i" ~ H s: ~ f9 ",,,, "" U n gS ~" .. . z ~ o ~ g ::' if ~'ag.~;i 88"\\ " 12~~g~ .... ~ 0 \I> P. ~".g. co"'.-' Z. a~.~' g.a ~:l ;'::l g. \..) ~ ....,0 :::l _ _, V> -. 0 ~g.gg? -.' . 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"~ros~",,, ., "<' -II - , g If,r,-:&.-;;;iii!!!..;r- . x. ~ ~-- pl'(l'''l-'i&~<; .? 1~ $ 01.200 ~~040000 11 jLJ\'! 2\l 2005 I,\N\.f.DfRONlZ\l'COOf.l\l100 ." ; c., '.' ,..., ~::; C,T1 r) ~h '-1 :r.:-n rn~.- .~ \Ti ,.~C) ;:'"-:.~~1 (I~i:~; :':rn ~~~ -~ ('.'~~ o -0 -- --:... f:-:? i''''') i''-) IN THE COURT OF COMMON PLEAS OF CUMBERLAN COUNTY, PENNSYLVANIA Wachovia Bank, N,A, f/k/a First Union National Bank : CNIL DNISION Plaintiff Vs, Joseph W, Miholic : No, 05-2325 Defendant( s) ORDER AND NOW, this day of ,2006, upon consideration of Plaintiffs Motion for Additional Distribution of Sale Proceeds and Brief in support thereof, and upon consideration of any Response, it is hereby: ORDERED and DECREED that the Sheriff of Cumberland County is directed to distribute proceeds as follows: Principal Balance Interest to December 7, 2005 Escrow Less Suspense Late Charges BPO Recording Fee Property Inspections Legal Fees and costs Other fees Previous Sheriff s Deposit( s) Previous Sheriffs Deposit Refund(s) Current Sheriffs Deposit $17,178,86 $682,83 $4792,89 - $0,00 $159.44 $0,00 $0,00 $8.25 $2,531.60 74,25 $0,00 - $0,00 1500,00 Total $26,928.12 BY THE COURT: J, PHELAN HALLINAN & SCHMIEG, LLP BY: Michele M, Bradford, Esquire Identification No, 69849 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (? 1 ~) ~1i1-7000 Wachovia Bank, N,A. f/k/a First Union National Bank Attorney for Plaintiff : COURT OF COMMON PLEAS : CIVIL DIVISION Plaintiff : Cumberland COUNTY, PENNSYLVANIA Vs, Joseph W, Miholic : No, 05-2325 Defendant( s) PT,ATNTIFF'S MOTION FOR AOmTIONAT, mSTRTRTlTrON OF SAT.F PROCFFOS I. Plaintiff commenced the instant action by the filing of a Complaint in mortgage foreclosure on May 6,2005, A true and correct copy of the complaint is attached hereto and marked as Exhibit "A", 2, The property at issue is 21 Kingswood Drive, Mechanicsburg, PA 17055, Hereinafter referred to as "The Property." 3, Defendant failed to file an answer to the Complaint and a Default Judgment was entered on June 29, 2005, A true and correct copy of the judgment is attached hereto and marked as Exhibit "B", 4, Plaintiff entered Judgment in the amount of$19,959,89 and submitted a Praecipe for Writ of Execution, thereby causing the mortgaged property to be listed for Sheriffs Sale on December 7, 2005, 5, The property was exposed to Sheriffs Sale on December 7, 2005 and purchased by a third party for the sum of$121,000,OO, 6, Since the time of the filing of the Complaint and Judgment, Plaintiff has expended additional sums to pay real estate taxes and hazard insurance premiums and other costs collectable under the Note and Mortgage relative to the mortgaged property, A true and correct copy of the mortgage is attached hereto and marked as Exhibit "C", 7, Said expenditures inured to the benefit of all other parties who have an interest in the property, 8, Plaintiff is entitled to be paid these additional sums from distribution of the sale proceeds in this matter. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order directing the Sheriff of Cumberland County to distribute the sum of $26,928,12 to the Plaintiff. PHELAN HALLINAN & SCHMIEG, LLP Date: January 9, 2006 By: 7?J.t<Y- ~'~~ Michele M, Bradford, Esqu' e Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP BY: Michele M, Bradford, Esquire Identification No. 69849 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (71 ~) ~fi,- 7000 Wachovia Bank, N,A, f/k/a First Union National Bank Attorney for Plaintiff : COURT OF COMMON PLEAS : CIVIL DIVISION Plaintiff : Cumberland COUNTY, PENNSYLVANIA Vs, Joseph W, Miholic : No, 05-2325 Defendant( s) MFMOR A NnTTM OF T ,A W TN STTPPORT OF PT ,A TNTTFF'S FXCF,PTTONS TO nrSTRTRTTTTON ANn MOTTON FOR AnnrTTONAJ, nrSTRTRTTTTON OF SAT,F PROCFEIlS L FACTTTAT RACKc,ROTTNn The instant action was commenced by the filing of a Complaint in mortgage foreclosure on May 6,2005. By reason of Defendant's failure to answer thl~ Complaint, Default Judgment was entered on June 29,2005, Plaintiffs damages were assessed in the amount of$19,959,89 at the time of the entry of Judgment Plaintiff also caused a Writ of Execution to be issued and listed the mortgaged property for Sheriffs Sale on December 7, 2005, The property was sold at the December 7, 2005 Sheriffs Sale to a third party for the sum of$121,000,OO, Since the time of the filing of the Complaint and Judgment, Plaintiff has expended additional sums in order to pay real estate taxes, and hazard insurance premiums relative to the mortgage property, as well as other monies collectable under the Note and Mortgage, II. PLAINTIFF IS RNTITLF,n TO AN ORnRR nTRFCTINr. THR SHFRIFF TO mSTRTRTTTF AnmTIONAL FTTNnS TO THR PI.AINTIFF The Pennsylvania Rules of Civil Procedure do not provide Plaintiff with any remedy whereby the Office of the Sheriff can be directed to issue additlional distribution following the initial distribution of sale proceeds after the sale of real property, The Superior Court of Pennsylvania has held in the case of Fxtr"m Mortg"gi' v Willi"ms, 2002 Pa, Super. 246, 805 A2d 543 (Pa, Super. 2002), that payments for taxes and insurance, and through implication, other costs collectable under the Note and Mortgage, made by a senior lienholder following the entry of Default Judgment on its Mortgage relate back to the date of mortgage for the priority, In the instant matter, Plaintiff has expended additional sums, including taxes and insurance premiums, relative to the mortgaged property to protect its collateral. In accordance with the holding in Fxtr"co Mortg"ge 11 Willi"ms, these amounts are recoverable upon the distribution of sale proceeds and take priority over any amounts owed to junior lienholders, In addition this Court has plenary power to administer equity according to well settled principles of equity jurisprudence cases under its jurisdiction, ('hev"l v rity of Phibclelphi", 176 A, 779, 116 Pa, Super. 101 (1935), Moreover, it is well settled that Courts will lean to a liberal exercise of the equity power conferred upon them without encouraging technical niceties in the modes of procedure and forms of pleading, Gllnnett v Trout, 112 A,2d, 333, 380 Pa, 504 (1955), As such, Plaintiff submits that this Court should exercise it equity and discretion to allow the instant motion to be heard as it was promptly filed in anticipation of the distribution of proceeds of sale in this matter. Wherefore, Plaintiff respectfully requests this Honorable Court enter an Order directing the Sheriff of Cumberland County to distribute the amount of $26,928,12 in distribution of the amounts realized from the sale, Respectfully submitted, PHELAN HALLINAN & SCHMIEG, LLP Date: January 9,2006 By: WCCt' 77/ 0~ Michele M, Bradford, Esquire Attorney for Plaintiff f x ~) be t A- PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S, HALLINAN, ESQ" Id. No, 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 ATTORNEY FOR PLAINTIFF WACHOVIA BANK NA, F/KlA FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE, MILWAUKEE, WI 53224 Plaintiff COURT OF COMMON PLEAS CrvlL DrvISION TERM NO. OS' -oU,(S C;u;(TkJ CUMBERLAND COUNTY v. JOSEPH W, MIIlOLIC 21 KINGSWOOD DRIVE MECHAINCSBURG, P A 17055 CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE NOTICE (") ...., 0 C) c: --" -n en - 3-: ---1 ,'." ::C-n ~ -~ :-<'r::; I ~2 cr> '''':'f, ~ g~~~ ~ 6 ,-.\ ,,> (,,, .'-' CD ,< Defendant You have been sued in court. If you wish to defend against Ihe claims set forth in the following pages, you must take action within twenty (20) days after Ihis complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing wilh the court your defenses or objections to the claims set forth againsl you, You are warned that if you fail to do so the case may proceed withoul you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT IIA VE A LA WYER. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRlNG A LA WYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. I.awyer Referral Service Cumberland County Rar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 b'/ certi1y 'tie We here b a true en:: W\tl'\lll to e f the conect C?PY of record original i\\ed 0 ND PHEL.A\\o FEOEf\MP-N P\ AN AND PH~\ t> ~ !fE~~NEY FILE cu. A PLEASE RETURN File #: 116073 PHELAN HALLINAN & SCHMIEG. LLP LAWRENCE T PHELAN, ESQ" Id, No, 32227 FRANCIS S, HAJJ,INAN. ESQ., Id, No 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPIflA. PA 19103 flliL563- 7000 WACHOVIA BANK NA, F/K/A FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE. MILWAUKEE, WI 53224 ATTORNEY FOR PLAINTIFF Plaintiff COURT OF COMMON PLEAS CIVIL DIVISION TERM v. NO, CUMBERLAND COUNTY JOSEPH W, MIHOLIC 21 KINGSWOOD DRIVE MECHAlNCSBURG, P A 17055 Defendant CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECIWSURE NOTICE You have been sued in eourt, If you wish to defend against the claims set forth in the following pages, you musl take aelion within twenty (20) days after this complaint and notice are served, by enlering a written appearance personally or by atlorney and filing in writing with the court your defenses or objections to the claims set forth against you, You are warned that if you fail to do so the case may proceed withoul you and a judgment may be entered against you by the court without further notice for any money claimed in the complainl or for any other claim or relief requested by tbe plaintiff You may lose money or property or other rights importanl to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRlNG A LAWYER, IF YOU CANNOT AFFORD TO HIRE A LAWYER. THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle. P A 17013 (800)990-9108 IF THIS IS THE FIRST NOTICE THAT YOU HAVE REn:IVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, IS U.S,c. ~ 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE V ALl.DlTY OF THE DEBT OR ANY PORTION THEREOF, IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DA YS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTlI<'F WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, TilE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO TIlE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME ANI[) ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL EST A TE. L Plaintiff is W ACHOVIA BANK NA, F/KJ A FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE. MILWAUKEE, Wl 53224 2, The name(s) and last known address(es) of the Defendant(s) are: JOSEPH W. MmOLlC 21 KINGSWOOD DRIVE MECHAINCSBURG, PA 17055 who is/are the mortgagor(s) and real owner(s) of the property hereinafter described, 3, On 10/14/1982 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to CUMBERLAND V ALLEY SAVINGS & LOAN ASSOCIATION which mortgage is recorded in Ihe Office of II he Recorder of CUMBERLAND County, in Mortgage Book: 715, Page: 731. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same, 4, The premises subject 10 said mortgage is described as atiachecL 5, The mortgage is in default because monlhly payments of principal and interest upon said mortgage due 0 I /0 I /2005 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by writien nolice sent to Mortgagor, the entire principal balance and all interesl due thereon are collectible forthwith, 6, The following amounls are due on Ihe mortgage: Principal Balance Interest 12/0 I /2004 through 05/03/2005 (Per Diem $1 ,84) Attorney's Fees Cumulative Late Charges 10/14/1982 to 05/03/2005 Cost of Suit and Title Search Subtolal $17,178.86 283.36 1,250.00 53.43 ~550Jl9 $ 19,315.65 Escrow Credit Deficit Subtolal 0,00 561.44 $ 561.44 TOTAL $ 19,877.09 7, The attorney's fees set forth above are in confonnity with the mortgage documenls and Pennsylvania law, and will be collecled in the event of a third party purchaser at Sherifl's Sale. If the Mortgage is reinstated prior to the Sale, reasonable attorney's fees will be charged, 8, NOlice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has tenninated because Defendant(s) has/have failed 10 meet with Ihe Plaintiff or an aulhorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency, 9, This action docs not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000, WHEREFORE, PLAINTIFF demands an in rem Judgment againslthe Defendanl(s) in the sum of $ 19.877,09, togelher with interest from 05/03/2005 at the rate of$1.84 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property, PHELAN HALLINAN & SCHMIEG, LLP By: /)-~a;~ ~, LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plainliff LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land, situate in Mechanicsburg, Cumberland County, Pennsylvania. more particularly bounded and described as follows, 10 wit: BEGINNING at a point on the Northem side of Kingswood Drive which point is also the dividing line of Lois Nos, 20 and 21, Block 0, on the hereinafIer menlioned Plan of Lois; thence along said dividing line North 10 degrees 23 minutes Wesl a distance of 119,98 feet to a point at the dividing line of Lot No, 20, Block C, and Lot No, 14, Block 0; thence along said dividing lines North 79 degrees 37 minutes East 70,0 feel to a poinl; thence along the dividing line of Lois Nos, 20 and 19, Block 0, on the hereinafIer mentioned Plan of Lots South 10 degrees 23 minutes East a distance of 119,98 feet to a point on the Northern side of Kingswood Drive; thence along the Northern side of Kingswood Drivc South 79 degrees 37 minutes West a distance of70,0 feet to a point and place ofBEGlNNING, BEING Lot No, 20, Block D, on the Final Plan of Part of Blocks B, C, D, G and 11, Wynnewood Park as recorded in the Office oflhe Recorder of Deeds in and for Cumberland County in Plan Book 30, Page 116, UNDER AND SUBJECT to a 25 feet building set back line, BEING THE SAME PREMISES which W,D.C. Inc., a Pennsylvania Corporation, by its Deed daled January 20, 1980, and recorded July 15, 1982, in the Office of the Recorder of Deeds in and for Cumberland County. Pennsylvania, in Deed Book 29 V, Page 563, granted and conveyed unto Steven M, Claus and JeaneUe M, Claus, his wife, PREMISES: 21 KlNGSWOOD DRIVE VERIFICATION FRANCIS S, HALLINAN, ESQUIRE hereby states that he is attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and or the verification could not be obtained within the time allowed for the filing of the pleading, that he is authorized to make this verification pursuant to Pa, R, C. p, 1024 ( c ), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of its knowledge, information and belief Furthermore, it is counsel's intention to substitute a verification from Plaintiff as soon as it is received by counsel. The undersigned understands that this statement is made subject to the penalties of 18 Pa, c. S, Sec, 4904 relating to unsworn falsifications to authorities, ~l~ Francis S, Hallinan, Esquire Attorney for Plaintiff DATE: () )3\5 _/~~ f-,i~I\'It- \) I I'HEL\N HALLINAN & SCHMIEG, L.L.P. H" DA:'-iIEL G, SCHMIEG tdefttifi(~ation No. 62205 Attorney for Plaintiff O"F I'E\:\ CENTER AT SUBURBAN STATION 1617 JOIl" F, KENNEDY BLVD"SillTE 1400 j'!llLc',DLLPHIA, PA 19103-1814 LV 5 LS.!>l:]OOO W.\CllOVIA BANK, N.A. F/K/A FIRST UNION N\llO",ALBANK 11lliU W EST PARKLAND AVENUE MlI W\UKEE, WI 53224 JOSEPH W, MIHOLIC , '. '" CUMBERLAND COUNT€ ;g -,.,. c:.n COURT OF COMMONi1tEML [!;(i, c: .,,~. Z 7 (f) N _/ ill r' <" -- ~E_; z =z .[:' """ > :J: o o .1 :r.!::>J ~1Ti :on aT -,.tC) :r: ::~ ~() CSrn --I 'r> ~!J -< CIVIL DIVISION Plaintiff, NO, 05-2325 ox Defendant(s), ~'" ~ ~<0 ~ PRAECIPE FOR IN REM JUDGMENT FOR FAILU ~~ S-.~/. ~ ~\..~~ ANSWER AND ASSESSMENT OF HAM TO HE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against JOSEPH W. MIHOLIC, DefencLiI>t(s) for failure to file an Answer to Plaintifrs Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess Plaintifrs damages as follows: As set forth in Complaint interest from 5/4/05 to 6/17/05 TOTAL $19,877.09 $82,80 $19,959.89 i;,:.'< ~ ',','I , , ,;.~ ,cJ J hereby ce~~~~'};~ addresses of the Plaintiff and Ddendant(s~ as s\1.Qwn'~bove, and (2) that notice ha~~-Wn in accordance with Rule 237,J, copy attached, ' ,,' ~~~{<,~ , - - - " C Q , ~~~ MIE Attorney for Plaintiff )'lv~ UIRE J DAMAGES ARE HEREBY ASSESSED AS INDICAT7f' I DATE:-.JIA)~ :JCj:l-D&S ~- I PRO PROTHY (Rule of Civil Procedure No. 236) - Revised \., nit (:OURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW \\\UlO\IA BANK, N.A. F/KIA FIRST UNION \ \f 10,,",\! BANK i j ,'CD \n~ST PARKLAND AVENUE CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL mVISION Plaintiff, , NO. 05-2325 j( )","PlI W. MIHOLIC Defendant(s). ''ri :,'" ',: given that a Judgment in the above-captioned matter has been entered against you on J~ 2'1 200-5, ax: a04g_p.~7~ DEPUTY L. , . ,! h,",c any questions concerning this matter, please contact: ~~ ~~ " Ck-~ . L G, SCHMIE Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN S ON 1617 JOHNF, KENNEDY BLVD" SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 n HS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION , !I! Ii L,ED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN 1\'. ',KRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD ',:11 BE CONSTRUED TO BE AN ATIEMPTTO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY," ---, PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F, KENNEDY BLVD., SillTE 1400 PIDLADELPIDA, PA 19103-1814 (215) 563-7000 ATTORNEY FOR PLAINTIFF W ACHOVIA BANK, N.A. FIKIA FIRST UNION NATIONAL BANK 11200 WEST P ARKLAND AVENUE CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff, v. NO. 05-2325 JOSEPH W. MIHOLIC Defendant(s), VERIFICATION OF NON-MILITARY SERVICE DANIEL G, SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or its Allies, or othelWise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended, (b) that defendant JOSEPH W. MIHOLIC is over 18 years of age and resides at, 21 KINGS WOOD DRIVE, MECHANICSBURG, PA 17055. This statement is made subject to the penalties of 18 Pa, C.S, Section 4904 relating to unsworn falsification to authorities, ,---------- ---..... '---....... \ ~ (-0 ~Th\ - l\Wi ~ J;J EL G, S~ G, ESQUIRE '\ Attorney for Plaintiff ,) f:X:~;"D/t L ({L-- \<)59,0 . . U,S, S ----57,000.00---- ADJUSTABLE MORTGAGE LOAN NOTE )feL/ldJ- fLJIk/f-? od /'1 19~ Pennsylvania FOR VALUE RECEIVED, the undersigned ("BolTower") promises(t) to pay CUMBERLAND V ALLEY SAVINGS &. LOAN ASSOClATION. of 16 West Higb Stnet. Carlitle. PenNytvania (hereinafter calted "Note Holder"), or order, the sum of Fifty Seven Thousand----- DoUlU'I (U.S. S 57.000.00 ),Icgaj tenderof'the Unitt:d States of America to be paid to Note Holder, ita ccttaiII attorney .su<:CC:SSOI'1 or assigns, to which payment wc::1I andtndyto be made. Borrower and Borrower', bei,.,. executors, administrators,lUCCCIlOlS and uaips, andevery ohhem,jointly &l1d """rally, firmy by these presents ue bound. PriDCipal and m(erest shall be payable at 16 WeJ! Hi,h S~~t, Carlisle, PeuftlyJvanJ.. or $uch other place II Note Holder ma.y designate in consecutive mouthIyinstdmcntsontbc f'~rst \ 1) deyofeacbmOtlUlbcginniDgOll December 1. t t9~.and at such interest rate and IlOder luch terms and conditions as provided (or berein. The entire balance, includiba interest, if I:1Ot IOOUcr paid, shall be due and payable at the expiration of 360 months from the da~ of this Note. This obligation. is aIltomatically rcoewabl~i u provided for herein with the muimum tenn not to exceed forty (40) years from the date of this obligation. The Cnitial Term of this obligation sbal, be "'1!tft&-- yeaR. The Original Interest Rate shall be 1 3% percent per anJ~um with III resulting monthly paymentofprincipal and interest totalling S 030.54 , Alleast thirty (30) days but not more than forty-five (45) days priort(f the eIpiratioo of the Initial Term of this obligation and any Renewal Term hereof, Borrower mall be dOtiflCd in writinS of IJotrowers option to renew the Joan for an additioDal period of ~ years. At that time the Borrower ,hall be notified of the new rate of intereil: (the Renewal Interest Rate), aDd the amount of the motJ.lhly installments based 011. the Renew.llntertst Rate. When the obligation is renewed, the Dew rateofinterest &hall be based onchanps between the Original Index Rate u.d the Renewal Index Rate. The index utilized ,hall be the national average morta;age contract rate for ntajor lenders on the purchase of prevlOllslY--OCCllpied homes, as computed monthly by the Federal Home Loan Bank board and published in the Federal Home Loan Bank Board JOlltnal and monthly news refeases of the Federal Home Loan Bank Board. Variations in the interest rate for eacb renewal period shall depend Upl:ID wbether the index has increased or decreased IQ a hlaheror lower figure than it WILS on the date this obligation is first executed. If the index hIlS decreued, Note HoMer must redllcc the interes.t:rate subjcct to stated limitations in the mortgage instrument. If the index has in(~reased, Note Holder win increase rate by the amount of any increase in the index. $ubjedlo stated limitatjons in m0rt&8se UJstrument. Unless the Borrower elects to remit the entire &mount of the indebtedneli5 by the expiration date of the Initial Term of this obligation or .my Reruwal Term thereof, the oblisation shall automatically be renewed fol' an additional -----Gll8-- ( 1 year term at the Renewal Interest Rate with monthly payments as set forth in the Notice. Borrower shall bave the right ID make prepaymentin fun or In part of the outstanding ptincipalloao balance without penalty at anytime. Note Holder may require that IIflY partial prepayments (i) be made on the dal:e monthly installments are due and (ii) be in an amount of that part of one or more monthly installment paymeots which would be applicabll: to priacipal. Any partial prepayment shall be Applied against the principal amount outstanding and shall not postpone the dlle date ol lIJl:)' :rubsequent monthly mst.Umenu OTcMn,e tful amount ofsuch installments, unless NOIe Holder shall otherwise agrte in writing. Borrower shall aot be charged any cons or fec:!; in cOllMCtion with any TtguJarJy~scbeduled a4!ustments to lhe interest rate, the payment, the outstanding principal loan balance, or the loB.Il term. If any monthly installment under this Note is not paid when due and remains unpaid after a date specified by a notice to Borrower, the entire principal amoUnt outstanding and accrued interest thereon shall at once become due and payable at <he option orNate Holder. The date specified shall not be less than thirty (30) days from the date such notic'~ is mailed. Note Holder may exercise thisaptioo to accelerate during any default by Borrower. regardleu of any prior forbearance. If suit is brOught to collect this Note, Note Holder ,hail be entitled co coUec:t all reasonable costs of suit, including, but not limited to, rtasooabte attorney's fees. Borrower shall pay to Note Holder a late charge of 'I per<:ent of any monthly installments IlOt received by Note Holder within as days after the installment is dUe. Any notice 10 Borrower provided for in this Note shall be given by mailinl such notice by certified mail address<<llo Borrower at the Property Address slated below, or to such other address as Borrower may designate by notice to the Note Holder. Any notice to the Note Holder shall be given by maiUn, such lIotice by "rtified mail, return rec:ejpt requened. to the Note Holder at the address stated in the first paragraph or this Note, or at luch oIhc-r address as may have been designated by notice to Borrower. ' 'The indebtl'dnessevidenced by this Note is secured by a MOI1Ja3C.Wlted OCr. 1'1, /19L....- ,and ~ference is made to the M01't&8st for rights as II) acceleration of the indebtedness evidenced by tbl6 Note. ' WITNESS, 21 King~~Dr~ ' Meohanicsburg, PA 17055 fL~J.-a/ /l1:./L~ (7 (I (SEAL) (SEAL) (SEAL) ProperlY Addreu Pay to the Order of (Execute OriJinal ODly) withl;)\1t reco\Ifle HiD financial, Savings Associalion ~------- .' S. Donald Mathews' ADJUS-6,E MORTGAGE LOAN MOR.GE THIS ADJUSTABLE MORTGAGE LOAN MORTGAGE (hereinafter "Mortgage") is made litis 19<<~tween the MOl1iagor, fnllAp'h loJ MrhnH~ IV d.y of OCr: (huein "Borrower"), and th~ Mortp&ee;Cumberland Valley Savings and Loan Association, of 16 West Hi&h Street, Carlisle, Pennsylvania, a corporation otsani2:ed and cs:iSl:iog under the laws of the Commonwealth of PCMsylvania, (herein "Lender'''), This Mortgqe and its accompanyhl.l Note are evidence of debt which is an AdjustaMe Mortpge Loan issued under ud in accordance with the: authority oeSection 545.6-48 oClhe Rules and Regulations oflhe Federal Home Loan Bank Board. under the Home Owners' Loan Act of 1933, as amended, It is fu.rther authorized for Pennsylvania Savings a.nd Loan Associations by Act 211 of 1981, The Base Interest Rute paid durinJ the Initial Contract Tenn on this indebtedneJ$ is the rate sd forth in the Note accompanyinlthis MOrtpge. Said interest rau:' may vary at any Ad;iustmeDt Date. Payment Adjustment notice will be liven to Borrower at lust 30, but not more than 4:5 days before the adjustmtmt of the Plymcnt, Said adjll$ted Interest Rate shall be as requin:d by the A<ljultment Rate Index. Intcn:ston any Adjustment LoatI Term shall be "abject to the Interest -Rate provisions defined by the Rules and RcguJations. aforesaid. All term.s, conditions and definitions contained in the Note Ilccompanym, this Mortgage are- made a part hereof. I. DEFINITIONS. As used in this Mottla~ and the accompanying Note (hereinafter "Obligation"), the followill& terms !;halJ be defined as follows: I.ilial Loan Term or Initial Term. That period of time framand includiDg the day this Mortgage was signed to and incllldina the same day and month one yean from lhe day this Mortpge was liiiped. Renewal Loan Term or Rcne"al Term. That periodoftimll begiMingOll the first day next followil1l the end of the Initiial Loan Term and endinl the lame day and month one YCllnIlater. Forpurposes of rellewal. subscqucnl to the first renewal of this loan, R,:newal Loan Term means that period of time be&inning on the first day next following the end of the immediately prccedinaloan term and ending on the lime month and day oae yean later. Notice Period For Renewal. That period of time at least thirty (30) days but not mOlll than forth-five (4.5) days before the last day of the Initial Loan TeRn or Renewal Loan Tenns, except for the final ~newaJ Loan Term. Renewal Notice. Written Notice, accordil1l to the foon preSCribed by federal rcaulatiou (12 C.F.R. Section .54.5. 6-4,a(e)) to be senl by Lender to Borrower at least thirty (30) days but dOt more than forty-five (4.5) days before the last day of the Initial Loan Ternl or Renewal Loan Tenn, except for lhc final Renewal Loan Term. IRde:t., The index shall be defmed as the natiooal average mortgage contract rate formajorlenders on the purchase ofpreviously-oct:upied homes. as compuled monthly by the Federal Home Loan Bank Board and published in the F edetaJ Home loan Bank Board Journal and monthly news releases cf the Fedcs"al Home Loan Bank Board. Oriainallndex Rate. The Index Rate as detennined on the first day ohbe Initial Loan Term. The Original Index Rate shaH be the most recently available value of' the index at, or within six (6) months prior to, the date ofllle closing of the klan. Original Interest Rate. The Interest rate in effect during the Initial Loan Tenn.l> _ ~ Renewal Index Rate. The Index Rate as detcnnined al the time the Renewal NOIK:e is sent 10 IkirrowerfOi- the next Rene.....a1 Loan Tenn. The Renewallndcx RAte shall be the index value most recently available as oftbe date ofthc-rate adjustmenl, iflhe payment is nol simultartcously adjusted. or the index value most recently available as of the date of notification of. payment adjustment. Renewal Inteust Rate. The interest rate in effect during the Renewal Loan TelTD. Renewal Costs. Borrower shall DQ( be charged any cosls or fees in connection with a renewal of this loan. WHEREAS,lkirrowerisiooebtedtoLeoderintheprincipalsumof Fifty Beven thollsand_DollRrB (S51-.JJQQ Dollars, which indebtedness is evidenced by Borrower's Note dated IIJ~ I 'i - r.l. (herein "Note"), providing for monthly irtstallmentsofpaymentand interest, the first installmenttobe paid onche 1st .. ___dayof each month beginningon-------IH!cember 1..,,__ , 19-82.. The entire balance, induding interest, future advances and other charges, if DOl sooner paid, shall hi: due and payable at the expiratiOll of ;60 months from the date of this Mortgage. This obligation is auloRUltically renewable as provided for herein with a muximum term not to exceed forty (40) yean from the date of the obligation. That Obligation and this Mortgage provide, in part. for an Initial Loan Term and Renewal Loan Terms which will be automatically renewed at equal Renewai Intervals until the maturity date of this MORTGAGE, with a maximum term not to exceed forty (40) years from the date ofllleObligation. Each Renewal Term shall be the same length as the Initial Loan Term. IkilT'OWer shall have the right to make prepayment in full or in part of the outstanding principal loan balance without penalty at al1ytime. Lender may require that any partial prepayments(i) be made on the date monthly installments are due and (ii) be in an amount of that pan of anc or more monthly installment payments which would be applicable to principal. Any partial prepayment shall be applied against the principal amount outstanding and shall not postpone the due date of any subsequent monthly instaUments or change the amount of such installments, unless Lender shall otherwise agree in writing. The Note provide~ for an Initial Loan T~nn, an Original Interest Rate and a monthly payment for the duration of the Initial Loan Term. At least thirty (30) days but nOlITlOTt- than forty-five (4.5) days prior to the expiration of the Initial Tenn and any Renewal Term, Borrower shall be notified in writing of Borrower's option to renew the loan for an additional period of one years. Al that time Borrower shall be notified ofthe Renewal Interest Rate and the amoontofthc monthly installments based on the Renewal Interest Rate. When the obligation is renewed, the newrateofinterestshallbe based on changes between the Original Index Rate and the ~newal Index Rate. The index utili:z;ed shall bethc national average mortgage contract rak for major lenders on the purchase ofpreviously-occupied homes, as computed monthly by the Federal Home Loan Bank Board and published ill the Federal Home Loan Bank Board Journal and Monthly news releases of the Federal Home Loan Bank Board. Variations in the interest rate for ~acb renewal period shall depend upon whether the index has increased or decreased to a higher or lower filure than it was on the~a~ this Mort&age and accompanying Note arc first executed. The maximum amount of interest rate increase or decrease shall hr limited to _ ~ _ w_% per adjustment interval of --One- year, and the maximum interest rate decrease shall be limited to the same -...:2.. 0 _ % per any adjustment interval of one year. The minimum interest rate increase, or decrease that the lender shall take will be -----12S---- % during anyone adjustment interval of -DD.fL..- year. All interest rate adjustments ~hall be mandatory by the lender within the above atated limitations of increase and/or decrease. Unless the Borrower elecls to nmit the entire amount of the indebtedness by the eJpiration date of the Initial Term of this Mortgage and Note or 8QY Renewal Term. the obligation shall automatically be renewed for an additional -,GIHr- year tenn at the Renewal Interest Rate with monthly payments as set forth in the Notice. Use of Index. Lender reserves the right to change the selected index 10 any index of its choice if for any reason the chmen index ceases to exist or function in its present manner at the time of establishment of the loan, TO SECURE to Lender (a) the repayment of the indebtedness evidenced by the Note, with interest thereon. the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Mortgage, and the performance of the covenants and agreements of Borrower herein contained. and (b) the repaym~nt of any future advances, with interest thereon, made to Borrower hy lender pursuanl to paragraph 21 hereof(h~rein "Fulure Advances"), Borrower docs hereby mortgage, granl and convey to Lender the p'ropcrty located in the County of _,~rlRnd . Commonwealth of Pennsylvania, and described as follows: ALL THAT CERTAIN piece or parcel of land, situate in Mechanicsburg, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit; BEGINNING at a point on the Northern side of Kingswood Drive which point is also the dividing line of Lots Nos, 20 and 21, Block D, on the hereinafter mentioned Plan of Lots; thence along said dividing line North 10 degrees 23 minutes West a distance of 119.98 feet to a point at the dividing line of Lot No, 20, Block C, and Lot No, 14, Block D; thence along said'dividing lines North 79 degrees 37 minutes- East 70.0 feet to a point; thence along the dividing line of Lots Nos. 20 and 19, Block D, on the hereinafter mentioned Plan of Lots South 10 degrees 23 minutes East a distance of 119.98 feet to a point on the Northern side of Kingswood Drive; thence along the Northern side BOOK '115 PACE 731 of Kingstwood Drive South 79 degrees 37 minutes West a distance of 70.0 feet to a point and place of BEGINNING, BEING Lot No, 20, Block D, on the Final Plan of Part of Blocks B, C, D, G and H, Wynnewood Park as recorded in the Office of the Recorder of Deeds in and for Cumberland County in Plan Book 3D, Page 116. UNDER AND SUBJECT to a 25 feet building set back line, BEING THE SAME PREMISES which W,D,C,. Inc, , a Pennsylvania Corporation, by its Deed dated January 20, 1980, and recorded July IS, 1982, i~ th: Office of the Recorder of Deeds in and for Cumberland County, Pennsylvan~a. 1n Deed Book 29 V, Page 563, granted and conveyed unto Steven M, Claus and Jeanette M, Claus, his wife, See Power of Attorney dated, July 30,- 1982 from Steven M, Claus, and .Jeanette M. Claus. fits wife.-' to Anna F. Miller. Attorney-in-Fact', to be -recorded herewitl ~ TOGETHER wllh all the improvements now or hereafter erected on the property, and all easements, rights, appurtenan<:es, rents, royallies, mineral, oil and gas righls and profits, water, water rights, and water stock, and OIl] fi:r;tures now or hereafter attached to the property, all of which, inc!udin@, reptaameng and additions thereto, shall be deemed to be and remairt a part of the property covered by this Mortgage, and aU of the foregoing, IOgether with said property (or the leasehold estate if this Mortgage is on a leasehold) are herein referred to as the "Property". , Borrower covenants th'at Borrowu is lawfully seized of the estate hereby conveyed and has Ihe right to mor!ilage, grant and convey the Property, thai the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and demands, subject to any declarations, easements or restrictions listed in J. schedule of exceptions to coverage in any title inSUf8M.e p1)lic)' or certificate of title insuring Lender's interest in the Property. UNIFORM COVENANTS. Borrower and lender covenant and agtee as follows: 1. Payment of PTincipal and Interest. BOrrower shatl promptly pay when due the principal of <lnd interest on the indebtedness evidenced by the Note, prepayment and late charges as provided in the Note, and the principal of and interest on any Future Advances secured by this Mortgage. 2. Funds for Taxes and ItIS\1r..t\c~. Subject to ;lopplic.able law or to a written W<llVer by lender, Borrower shall pay to Lender on the day monthly installments of principal and interest ne payable under the Note, until (he Note is paid in full. a sum (herein "Funds") equal to one-twelfth of the yearly taxes and assessments which ma}' attain priority over this Mortgage, and ground rents on the Property, if allY, plus on\~.twelfth of yearly premium installments for h;lzard insurance, plus one-twelfth of yearly premium install. ments for mortgage insurance, if any, all as reasonably estimated initially and from time to time by lender on the basis of assessments ~, and bills and reasonable estimates thereof. ~ The Funds shall be held in an institution the deposits or accounts of which are insured or guaranteed by a Federal or state {-- agency (including lender if Lender is such an institution). lender shall Jlppty the Funds to pay said taKes, asses$ments, insurance '--" premiums and ground rents. lender may not charge for so holding and ap-plying the Funds, analyzing said "lc<:m.lnt, or verifyin'g and ~ compiling sJlid assessments Jlnd bills, unless lender pays Borrower interest on the Funds and applicable I~w permits lender to make such a charge. Borrower and Lender may agree in writing lit the time of el(l~cution of this Mortgage thai interest on the Funds shall be ,f) paid (0 Borrower, and unless such agreement is made or applicable law re<:\u\res SUl;n inttres'l to be paid, lender shall not be required -M to pay Borrower any interest or earnings on the Funds. lender shall give 110 Borrower, without charge. an annual accounting of the r.... Funds showing credits and debits to the Funds Jlnd the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for the s.ums secured by this M'0ftgage. ~ If the amount of the Funds held by lender, together with the j'uture month.ly installments of Funds payable prior to the ~ due dates of tal(es, assessments, insurance premiums and ground tents, shall _~Kceed the amount required to pay said taxes, assessments, insurance premiums and gfoune tents as they fall due, such excess shall be" at Borrower's option, either promptly repaid to Borrower or credited 10 BOrrower on monthly installments of Funds. If the "lffiOUnl of the Funds held by lendershall not be sufficient to pay taxes, assessments, insurance premiums and ground rents as they fJlIl due, Bt;>rrower shall pay to lender any amount necessary to make up the deficienr;y within 30 days from the date notice is mailed by Lender to Borrower requesting payment thereof. Upon payment in full of all sums secured by this Mortgage, Lellder shaU promptly refund to Borrower any Funds held by lender. If under paragraph 18 hereof the Property is sold or the- Property is otherwise acquired by Lender, Le(\deT shall apply, no later than immediately prior to the sale of the Properly or its acquisition by Lender, any Funds held by lender at the time of application as a credit agairlst the sums secured by this Mortgage. J. APplication of Payments. Unless Jlpp!icable law pmvides otherwise, all payments received by Lender under the Note and paugraphs I Jlnd 2 hereof shall be Jlpplied by le-nder first in payment of almounts payable to Lender by Borrower under paragraph 2 hereof, then to interest payable on the Note, then to the principal of tho: Note, and then to interest and principal on any Future AdvaJlces. 4. Charses; Liens. Borrower shall pay all taxes, assessments and other charges, fines and impositions JlUributJlble to the Property which may attaiJl a priority ovenhis Mortga8e, and leasehold payments or grouJld rents, if any, in the maMer provided under paragraph 2 hertof or, jf 110\ paid in such ffiJltlner, by BOrrower making pJlymenl, when due, directly to the payee thereof. Borrower shall promptly fumish to lender all notices of amounts due under this paragraph, and in the event Borrower shall mJlke payment directly, Borrower shall prOmptly furnish to Lender receipts evidencing sl,.l(:h payments. Borrower shall promptly disdu,tle any lien which has priority over this Mortgage: provided, that Borrower shall not be required to discharge any such lien so long as Borrower shall agree in writing to the payment of Ihe obligation secured by such lie~1 in a manner acceptable to Lender, or shall in good faith contest such lien by, or defend enforcement of such lien in, ItlJll proceedifli''s wh.icb ope-tate t'0 pte~ent the enforcement of the lien or forfeiture of the Property or Jlny part thereof. S. H,zard InsUrance. Borrower shall keep the improvements now existing or hereafter erected on the Properly insured agJlinst loss by fire, flazuds included within the tl:rm "~xtended cov~nge," "lnd such. other hawds as lender may require Jlnd in such am01Jnls and for such periods as Lender may require; provided, that lender shall not require that tbe amount of such coverage exceed that amount of coverage required to pay the sums secured by this Mortgage. The insurance carrier providing the ins\lul'lce shall be chosen by Borrower subject to approval by lender, provided that such approval shall nOI be unreasonably withheld. AU premiums on insurance policies shall be paid in the manner provided under paragraph 2 hereof or, if not paid in such m;lnner, by BOrrower making payment, when due, directly to the insurance catrier. AU insunnce policies. and renewals thereof shall be in form acci~ptable to Lender and sh<tn include a standard mOrteage clause in favor of and in form acceptable: to Lender. lender shall have the right 10 hold the policies and renewals thereof. and Borrowt:!t sh,ilJ promptly furnish 10 Lender all renewal notices and Jill receipts of paid premiums, In the event of Joss, BorrOWer snail %ive prompt notice to the ins\lrance carrier and lender. lender may make proof of loss if <1ot made promptlY y Borrower Unless lender and Borrower ot.se agree in wriling, insurance proceeds shall b lied 10 reslOralion or fe-pair of the Ptoperty damaged, provided such restora r repair is economically feasible and the- secur f this Mortgage is lIot thereby im- paired. If Slll:h restorahon or repair is not .micallY feas.ible or if th~ ~{:\ui\y of this Mot. would be impaind,lhe insurance proceeds stl3l1 be applied to the sums secur thLS Mortgage, with the excess, If any. paid to weT. If Ihe Property is abandoned by Borrower. or if Borrower fails 10 respond to Lender wichin ]0 days from the date nOli,e is mailed by lender to Borrower that the insurance carrier offers \0 sen\e a daim {or l.r.sur:mce benefits. lender is authon.zed to collect and apply the insurance proceeds at Lender's option either to restoration or repair of rhe ProperlY or 10 the sums secured by this Mortgage. Unless lender and Borrower otherwise agree in wriling. any such application of proceeds to principal shall not extend or ~tpOl\e the due date of the monthly installments referred to in paragraphS I and 2 hereof or change the amount of such installments, If under paIagIllph 18 hereof the Property is a(;quired by Lender, all right, title and interest of BorrOwer ill and to any insurance policies and_in and to the proceeds thereof resulling from damage to the Property prior 10 the sate or acqul.s.ition shall pass 10 lendu (0 the extent of the sums secured by this Mortgage immediately prior to such sale or acqUisition. 6. Pres~rvation Ind Mainlenance of Property; lel~holds; Condominiums; PlInned Unit Devefopmelus. Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or de\eri<}Illlion of the Property and shall comply with the provisions of any lease if this Mortgase is 011 a leasehold. If this Mortgage is on a unit in a condominum or a planned unit develop- ment, Borrower shall perform all of Borrower's obligalions under the declaration or covenants creating or governing the condominium or planned unit denlopment, \h-e by,law!. and regulatiOns of the conoominium or planned unit development, and constituent doc;u- rrlerlts, If a condominium or planned unit development rider is el(ecuted by Borrower and recorded together with I:his Mortgage, the covenants and agreements of such rider shall be incorporated into and shall amend and supplement the covenants llnd agreements of \hh Marttage ~ if the rider were a part hereof 7. Protection of Lender's Security. If Borrower fails to perform the covenants and agreements contairted in this Mortgage, or if any actiOn or pnx:eeding is commenced which materially :affects lender's interest in the Property, includin&.. but not limited to, eminent domain, in~olvency, code enforcement, or arr;mgements or proceedings Involving a bankrupt or decedent, ltien Lender at Lender's option, upon notiCe to Borrower, may make such appearances, disburse such sums and take such action as is necess.ary to protect Lender's interest, including, but not limited to, disbursement of reasonable attorney'~ feu and entry UP\)}' the Property to make repairs. If lender required marl gage insurance as a condition of making the loan secured by this Mortgage, Borrower shall pay the premiums required to maintairt such insurance in effect until such time as the requirement for such insurance telrminates in accor- dance ....ith Borrower's and Lender's written agreement <:H ai'lplkabk. law. BOHowcr shall pay the amount of aU mortpge insurance premiums in the manner provided under paragraph. 2 hereof. Any amounts disbursed by lender pUTSuanl 10 this paragraph 7, with intere~t thereon, shall become lIdditi,)nal indebtedness of Borrower secured 13)' this Mortgage. Unless Borrower and lender agree to olher terms of payment, such amounts shall be payable upon notice frOm lender to Borrower requesting payment thereof. and shall bear interest from the date of diSburs;ement at the rate payable from time to time on outstanding prindpal under the Note unless payment of interest at such. rate would be ,:ontrary to apvH- cllbk law, in which event such amounts shall bear interest at tht highest rate permissible under applicable law. Nothingcofltained in this paragraph 7 shall require Lender to incur any l'.xpense or take any action hereunder. 8. Inspection. lender may make or cause 10 be made reasonable el\trie~ upon and inspections of the Property, provided that Lender shall givt Borrower notice prior to any such inspection specifying reasonable cause Ihertfor relaterl to Lendl~r's interest in the Property. 9. Condemnation. The proceet!s of l\P,y award or claim for dama8~, dilect or consequential, i:J connection with any condem- nation or other taking of lhe PToperty, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid 10 lender. In the event of a total raking of the Propeny, the proceeds shall be applied 10 the sums secured by this Mortgage, with the eJlcess, jf any, paid to' Borrower. In the event of a parlial taking of the Property, unless Borrower and Lender otherwise agree in writing, there shall be applied 10 rhe sums se:ured by this Mortgage such proportion of lhe proceeds as is equal tc, that proportion which the amount 01 the sums secured by this Mortgage immediately prior 10 the date of taking bea~ to the fair mllrket value of the Property imm<:diatdy prior to the date of taking, with the balance of the proceeds paid to Borrower. If the Property is abandoned by Borrower, or if. after nOlice by Lender to Borrower tha.t the condemnor offers' to make an award or settle a claim for damages, Borrower fails to respond 10 Lender within 30 days after the dale such notice is .mailed, Lender is authorized to called and apply lhe proaeds, al lender's opTion, either to restoration or repair of the Property or to the SUMS secured by this Mortgage. Unless Lender and Borrower olherwise agree in wriling. any such application of proceeds to principal sh,lll not extend or postpone lhe due date of the mOnlhly installmenls referred to in paragraphs I and 1 hereof or change the amount of such installments. 10. Borrowu Not Rdeased, Extension of the time fot payment or modification of amortization of the sums secured by this Mortgage granted by lender 10 any SUl.:ceSsor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and Borrower's suc(;eS$urs in interest. Lender shall not be required to commenct proceedings against such successor Of refuse \0 extend time fOT payment or otherwise modify amortization of Ihe sums secured by this Mortgage by reason of any demand made by the original Borrower arld Borrower's successors in jnlerest. 11. Forbearance by Lender Not I Waiver. Any forbearance by lender in exercising any right or remedy hereun:1er, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exe~cise of allY such right or remedy. The procurement of insurance or lhe payment of tal(es or other liens or charges by lender shall not be a waiver of Lender's right to accelerale thl~ maturily of the indebfedness secured by this Morlgage 12. Remedies Cumulalive. All remedies provided in this Mortgage arc dIstinct and cumulative to any other right or remedy under this Mortgage or afforded bylaw or equity, and may be exercised concurrently, independently or Successiveiy. \ J. SuccessorS llond ,,"ssigns Bound; Joint and Several Liability: Caplions. The covenants and agreements herein contained shall bind, llnd the rights hereunder shall inure 10, the respective successors and assigns of Lender and Borrower, subject to the provisions of paragr~ph 17 hereof- All covenants and agreemenls 01 Borrower shall be joint and several. The captions and headings Qf the paragn.pt\<s of this Mortgage are for convenienl.:e only and are not to be used to intnpret or define the provisions hereof. 14. Nolice. EXcepl for any notice required under applicable law 1<:; be given in another rtlanner or permitled by accompanying Note to be given in another manrter (ai any notice to BOHower provided fot in Ihi'S Mortgage snail be given by maili~lg such notice by certified mail addressed to Borrower al the Property Address or at such other address as Borrower may desigr.ate by nmice to Lender as provided herein, and (b) any nOTice to lender shall be given by certified mail, retuIll receipl requested, to Lender's address stated herdn or to such other -adates~ as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in the manner designated herein 15. UnifOrm Mortgage; Goveminll law: Severability. This form of mortgage combines uniform covenants for natiol1al use and non-uniform covenants with limited variations by jurisdictiol1to constitute a uniform security instrument covering rul property. This Mortgage shall be governed by the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Mortgage or the: NOle conOids with applicabk law, such conflict 'Shall not aflect other provisions of this Mort~;age or the Note which can be given effed withoul lhe conflicting provision, and 10 this end the provisions of the Mortgage and the NOle are declared to be severable 16. Borrower's Copy. Borrower shall be furnished a conformed copy of the NOle and of this Mortgage at the time of eJlecution or after re.:ordation hereof. 17. Tu.rufer of the Property; ASSllmption. If all or an~' par! of lhe Property or an iJ\lerest legally and/or eqUItable therein is sold or transferred by Borrower without Lender's prior wrillen cansenl, el(c1uding (a) lhe neat ion of a lien or encumbranl.:e subordinate to ThisMortg~gr. (bl the l.:reat;on of a purdlllse Q10ney security intertst for household appliances, (c) a transfer by devise. descent or by operation of law upon the dealh of a joint tenant or (d) the gr1ln\ o{ aft)' \e~seho\d interest of three years or less not COJ1taining an oplion to purchase. Lender may. at lender's option, declare allt he sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if. prior TO the sale or transfer. Lender and tht person to whom the Property is 10 be solo or lrans.ferred read1 agreement in writing thaI the credit of such person is satisfJctory to lender and that the interest payable on the sums se<:ured by this Mortgage shall be at such rate as lender shall request. If lender has waived the oplion to accelerate pro, vided in this paragraph 17, and if Borrower's su<:cessor in inltreSt has executed a wrilten assumplion agreement accepted in writing by lel1dl"r. lender shall release Borrower from all obligations under this Mortgage and the Note If Lender e~er(;ises such oplionto accelerate. Ltnder shall mail Borrower nolice of acceleration in accordance with paragraph 14 hereof. Su<:h notke shall provide 11 period of nOI less lhan 30 days from the date the notice is ma.\ld within which BOllower may pay the sums declared due If Borrower fails to pay such sums prior to the el(piralion of such period, Lender may, without further notice or demand on Borrower. invoke Jny remedies permitted by paragraph 18 hereof BBOK I1S I'KCE 133 ---- .. - I NON-UNIFORM COVENANTS. Borrower and lender further covenant and agree as follows. 18. Accelerltion; Remedies. Upon Borrower's breach of any covenanl or apeement of Borrower in Ihis Mortgage. induding the covenants to pay when due any sums secured by this Mongage, lender prior to acceleration shall mail nOlke to Borrower as provided by applicable law specifying: (I) the breach; (2) the action required to Clue such bread\; (J) a date, no! less.than.3() days from rhe datc" the notice is mailed 10 Bor'rower, by which such hreach must be cuied; ana (4) that failure to cure 5udi hrea<:h on or before the date"specified in the notice may resuLt in acceleration' of the sums secured by this Mortgage, foreclosure by judidal procl"eding and sale of the Property. The notice shall further inform Borrower of the right to reinstate arter acceleralion and the right (0 assert in the fore, clo.su~e proce~di!1g tJ:le.non-existen.ce, of a default or ~ny at, her de.feru;e'of Borrower.le:; acceleraJion ~nd foredo,sure. I( the I;1reach is nol . cured .on .or ?eforc t.he date specified in the.notice,' Lender at lender's option ma.y declare all of the sums secured hy.t!\is Mortgage to 'Be Immedl8.tely due and payable wilhout furttier demand ana may foreclose thiS Morigage by Judicial proceedmg:Lendershall he erititled to eollecr in ruth proceeding all expense's' of foreclosure, ir1cluding, but not limited to, reasonable attorney's fees. and <.:ost of documentary evidence, abstracts and title reports. . 19. Borrower's Rillht to Reinstate, Notwithstanding Lender's acceltruion of the sums secured by this Mortgage, Borrower shall have the right to have any proceedings begun by Lender 10 enforce this Mortgage discontinued at any time prior to at Lcasl one hour prior to the oommencement of biddiJ1g at a sheriff's sale or other sale pursuant to this Mortgage if (a) Borrower pays Lender all sums which would be then aue unde'r.this Mortgage:the'Note and'notes'securirlg' I-'uture Advances, ifliny,'had' no a-p:ekration:ol:<.:uhed.{bl Borrower cures all ~re.:iches')JL:a~y other'covenants or agreements of Borrower contained in' this Mortgage; (<:l Borrower pays all- reasonable expenses incurred by lender in enforcing the covenants and agreements of Borrower contained in this Morlgage and in enforcing Lender's remedies as provided in paragraph 18 hereof, induding, but not limited to, reasonable' attorney's fees; and (d) Bor- rower talees such Action as lender may reasonably require to assure that the lien of this Mortgage, Lender's interest in the ProperlY and Borrower's obligation to pay the sums secured by th.is Mortg.age shall continue unimpaired. Upon such payment and cure by Borrower, this Mortgage and the obligations secured hereby shall remain in full force and effect as if no an-eltration had o<.:curred. 20. AS!iignment 0' Rents; Appointment of Receiver; Lender in Possc~ssion. As additional security hen'under, Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under paragraph 18 her~of or abandon- ment of the Property, have the right 10 collect and retain such rents as they become due and payable. Upon acceleration under paragraph 18 hereof or abandonment of the Property, Lender, in per~on, by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of and manage the Property and to collect the u:nts of the Property including those past due. All rents collected by Lender or the receiver shall be applied first to payment of the costs of management of the Property and collection of rents, including, but not limited 10, receiver's fees. premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Morteage_ Lender and lhe receiver ~hall be li;lhle to ac<.:ounl only for thn~.. rents actually received. 21. future Advances. Upon request of Borrower, Lender, at Lender's option prior to release of this Mortgage, may make Future Advances to Borrower, Such Future Advances, with interest then~on, shall be secured by this Mortgage wtlen evidenced by promissory notes stating that said notes are secured hereby. At no time sh.dl the principal amount of the indebtedness secured by this Mortgage, not including sums advanced in accordance herewith to protect the security of this Mortgage, el<ceed the original amount of the Note. 21. Release. Upon payment of all sums secured by this Mortgage, Lender shall discharge this Mortgage, without charge to Borrower. Borrower shall pay all costs of recordation, if any 23_ Purchase Money Mortgage. If all or part of the sums secured by this Mortgage are lent to Borrower tu acquire title to ttie Property. this Mortgage is hereby de<:lared to be a purchase money mortgag<:. There are no divorce proceedings ponding in any jurisdiction.. between o/a In Witness Whereof, Borrower has executed this Mortgage. ani ~ ~~_ (;~L I'd /4;L. '. Wi\A~~~ 7 \ Commonwealth of Pennsylvania. {; ~ /J County ss Onthis,the~~dayof /?<o-.h.!P, _ ,19~eforeme, the undersi@.ned officer, personally appeared ~r:- known to me (or satISfactorily prove~ to be the person ..=whose name subscnbt'/i t t"\itil . lIlstrument and acknowledged that _ ~ _ executed the sa~e for the urposes herem-~ ~~nel:l . . ""'I p- " InWttnessWhereof,lhereuntoset my hand and omclal seal /,?~ ,:' " - ~/I~~. '-' < f!.'/e?, My CommiSSion eXPC\flRlES W. GILMORE, Notary Pubhc ",...,<~.i Camp Hlll Cumberland county, PA .(~ ~':....... -.. My Commission Explfes December 30, 198$ Titl~ of Officer -Borrower ~--=-Bo;ro.;;;;. I certify that the precise place of business of the within named Mortg:lgee is RECO'RDED in the Office for Recording of Deeds in and for~. in MorlJa)e\B~k": " No. 7/ ....- Page , < ""IAij7. " ~~!~.:l/'~~~ <_. ('I/..Iq Y?_ Re,;order ,~.. -'-~l;;.,.. -~ &0. Pak:...:.. ;;;j /~-- <. , on "' o .... rl 'cl.' ~.'~?':~'::'P1. .-~':. ~~ t... _'~:.~.:~,:,~~' <1,;)'/1. ",--" ,", , I, \"\1\" '('0.1 .. "'" ' c. - t:tI ~ 1# K; t:tI t:: Q ~ " : ~ ~ " 1! 8 .:! . Ul '-' Z >-l ~ Ul '" >< >-l '" "" ,., 0 ~ E '" 0 0 >-l u: :>:: t- ~ h '" '" "''''' ., ~~ '" " 0 ;; 0 ., . '~ , E ns PACE 731. <: 0: BOO! "' X 0-<1)>- ~ill~~ <:J 0-0: :::~o~ " x~ 0':<:04(1) b~~:>t; u./a:......::; OOm""' <Y.ux"" J~~ ~ C"> -or ~ .... = VF,RTFTCA TTON Michele M. Bradford, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to take this Affidavit, and that the statements made in the foregoing Plaintiffs Exceptions to Distribution and Motion for Additional Distribution of Sale Proceeds are true and correct to the best of her knowledge, information and belid, The undersigned understands that this statement herein is made subject to the penalties of 18 Pa,C,S, Section 4904 relating to unsworn falsification of authorities, Dated: January 9,2006 .rn~:0' q~ Michele M, Bradford, Esquire PHELAN HALLINAN & SCHMIEG, LLP BY: Michele M, Bradford, Esquire Identification No, 69849 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (71 'i) 'ifi,-7000 Wachovia Bank, N,A. fik/a First Union National Bank Attorney for Plaintiff : COURT OF COMMON PLEAS : CIVIL DIVISION Plaintiff : Cumberland COUNTY, PENNSYLVANIA Vs, Joseph W, Miholic : No, 05-2325 Defendant( s) CERTIFICATE OF SERVICE I hereby certiJY that a true and correct copy ofthe foregoing Plaintiff s Motion for Additional Distribution of Sale Proceeds was sent via first class mail to the following parties on the date listed below: Joseph W, Miholic 21 Kingswood Drive Mechanicsburg, P A 17055 Respectfully submitted, PHELAN HALLINAN & SCHMIEG, LLP Date: January 9,2006 By: 7?1-"'Ckm~ Michele M, Bradford, Esquire Attorney for Plaintiff . PHELAN HALLINAN & SCHMIEG, LLP BY: Michele M, Bradford, Esquire Identification No, 69849 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 Wachovia Bank, N,A, fi'k/a First Union National Bank Attomey for Plaintiff : COURT OF COMMON PLEAS : CIVIL DIVISION Plaintiff : Cumberland COUNTY, PENNSYLVANIA Vs. Joseph W, Miholic : No, 05-2325 Defendant( s) AMENDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing Plaintiffs Motion for Additional Distribution of Sale Proceeds was sent via first class mail to the following parties on the date listed below: Joseph W. Miholic 21 Kingswood Drive Mechanicsburg, P A 17055 Member 1st Federal Credit Union 5000 Louise Drive Mechanicsburg, P A 17055 Cumberland County Sheriffs Department I Courthouse Square Carlisle, P A 17013 Respectfully submitted, PHELAN HALLINAN & SCHMIEG, LLP Date: January 10, 2006 By: 777.#('--'7J1-0~ . Michele M, Bradford, Esquire Attorney for Plaintiff !"'-.:> C') 0 ::=>~ -jl ~,- c-" o PHELAN HALLINAN AND SCHMIEG, LLP By: MICHELE M. BRADFORD, ESQ. Atty. LD. No. 69849 One Penn Center Plaza, Suite 1400 Philadelphia,PA 19102-1799 (215) 563-7000 W ACHOVIA BANK, N.A. F/KJA FIRST UNION NATIONAL BANK ATTORNEY FORPLAThITWF : COURT OF COMMON PLEAS : CNIL DNISION Plaintiff : CUMBERLAND County vs. JOSEPH W. MIHOLIC : No. 05-2325 Defendant EXCEPTIONS TO SHERIFF'S SALE DISTRIBUTION PURSUANT TO PA.R.C.P.. RULE 3136(d) And now comes Plaintiff, WACHOVIA BANK, NA F/KIA FIRST UNION NATIONAL BANK, by and through its counsel, Phelan Hallinan & Schmieg, LLP, and prays that this Honorable Court grant Plaintiff s Exceptions to Sheriff s Sale Distribution of Proceeds for the following reasons: 1. The Plaintiff is WACHOVIA BANK, N.A. F/KJA FIRST UNION NATIONAL BANK, the holder of that certain Mortgage dated October 14, 1982 and recorded October 14, 1982 in Mortgage Book 715 Page 731. 2. The underlying loan became delinquent and Plaintiff initiated foreclosure proceedings on May 6, 2005. Attached hereto, made a part hereof and market as Exhibit "A" is a true and correct copy of the Complaint in mortgage foreclosure. 3. On December 7, 2005, the premises located at 21 Kingswood Drive, Chambersburg, PA 1720 I was sold at judicial sale pursuant to Writ of Execution issued out of the captioned case. Attached hereto, made a part hereof, and marked as Exhibit "B" is a true and correct copy of the Praecipe for Judgment and Writ of Execution. 4. At the judicial sale, the property was struck down to a third party bidder for the amount of $121,000.00. 5. On or about January 6, 2006 , in accordance with Pa.R.C.P. 3136(d), the Sheriff issued a proposed Schedule of Distribution, which distribution listed the Plaintiff as receiving $20,674.37 . Attached hereto, made a part hereof and marked as Exhibit "c'" is a true and correct copy of the Sheriffs proposed Schedule of Distribution. 6. The Sheriffs proposed Schedule of Distribution fails to reference the proper amount to be paid to the executing Plaintiff. 7. Plaintiff believes and therefore avers, that it is entitled to proceeds in the amount of $26,928.12 , as it has expended additional sums to pay real estate taxes and other costs collectable under the Note and Mortgage relative to the mortgaged property. The Superior Court of Pennsylvania held in the case of Extraco Mortgage v. Williams 2002' Pa. Super 246, 805 A2d 543 (2002), that payments for taxes, insurance, and other costs relate back to the date of the Mortgage for priority and that those amounts can be collected in distribution of third party sale proceeds even if they were not claimed in the mortgage foreclosure Complaint or included in the judgment amount. 8. Plaintiff is entitled to be paid these additional sums from distribution of the sale proceeds in this matter. The amounts due Plaintiff are as follows: Principal Balance Interest to December 7, 2005 Escrow Less Suspense Late Charges BPO Recording Fee Property Inspections Legal Fees Foreclosure Costs Previous Sheriffs Deposit(s) Previous Sheriff s Deposit Refund( s) Current Sheriff s Deposit $17,178.86 $682.83 $4,792.89 - $0.09 $159.44 $0.00 $0.00 $8.25 $2,531.60 $74.25 $0.00 - $0.00 $1500.00 Total $26,928.12 WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order directing distribution to the executing Plaintiff in the amount of 26,928.12 . Respectfully submitt:d; PHE Date: Januarv 13. 2006 PHELAN HALLINAN AND SCHMIEG, LLP By: MICHELE M. BRADFORD, ESQ. Atty. LD. No. 69849 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19102-1799 (215) 563-7000 ATTORNEY FORPLAINTWF WACHOVIA BANK, N.A. F/KJA FIRST UNION NATIONAL BANK COURT OF COMMON PLEAS CNIL DNISION Plaintiff CUMBERLAND County vs. JOSEPH W. MIHOLIC No. 05-2325 Defendant BRIEF IN SUPPORT OF PLAINTIFF'S EXCEPTIONS TO DISTRIBUTION I. FACTUAL BACKGROUND The instant action was commenced by the filing of a Complaint in mortgage foreclosure on May 6, 2005. By reason of Defendant's failure to answer the Complaint, default judgment was entered on June 29, 2005 . Plaintiffs damages were assessed in the amount of$19,959.89 at the time of the entry of judgment. Plaintiff also caused a Writ of Execution to be issued and listed the mortgaged property for Sheriffs Sale on December 7,2005 . The property was sold at the December 7,2005 Sheriffs Sale to a third party for the sum of$121,000.00. Since the time of the filing of the Complaint and judgment, Plaintiff has expended additional sums in order to pay real estate taxes, and hazard insurance premiums relative to the mortgage property, as well as other monies collectable under the Note and Mortgage. On or about January 6,2006, in accordance with Pa.R.C.P. 3136(d), the Sheriff issued a proposed Schedule of Distribution, which proposes to pay Plaintiff $20,674.37 . The Sheriffs proposed Schedule of Distribution fails to reference the proper amount to be paid to the executing Plaintiff. II. LEGAL AUTHORITY Pennsylvania Rule of Civil Procedure 3136(d) allows a party to file Exceptions to the Sheriffs proposed Schedule of Distribution within ten days. In the instant case, Plaintiff filed timely exceptions. The Superior Court of Pennsylvania held in the case of Extra co Mortgage v. Williams. 2002 Pa. Super. 246, 805 A.2d 543 (Pa. Super. 2002), that payments for taxes and insurance, and through implication, other costs collectable under the Note and Mortgage, made by a senior lienholder following the entry of default judgment on its Mortgage relate back to the date of mortgage for the priority. In the instant matter, Plaintiff has expended additional sums, including taxes and insurance premiums, relative to the mortgaged property to protect its collateral. In accordance with the holding in Extraco Mortgage v. Williams, these amounts are recoverable upon the distribution of sale proceeds and take priority over any amounts owed to junior lienholders. The facts ofthe instant case are identical to those in Extraco Mortgage v. Williams. In footnote 3 of that Opinion, the Superior Court explains that the second mortgagee is not harmed by the first mortgagee recouping the taxes and insurance from the Sheriff s sale proceeds. If the first mortgagee had not paid them, the second mortgagee would pay them by default. The Superior Court held that a foreclosing mortgagee is not required to file a Motion to Reassess Damages before Sheriffs sale in order to recover its advances on the loan. In addition this Court has plenary power to administer equity according to well settled principles of equity jurisprudence cases under its jurisdiction. Cheval v. Citv ofPhiladelohia, 176 A, 779,116 Pa. Super. 101 (1935). Moreover, it is well settled that Courts will lean to a liberal exercise of the equity power conferred upon them without encouraging technical niceties in the modes of procedure and forms of pleading. Gunnett v. Trout, 112 A.2d, 333, 380 Pa. 504 (1955). As such, Plaintiff submits that this Court should exercise it equity and discretion to allow the instant motion to be heard as it was promptly filed in anticipation of the distribution of proceeds of sale in thi smatter. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order directing distribution to the executing Plaintiff in the amount of $26,928.12 . Respectfully submitted, Date: Januarv 13. 2006 AND SCHMIEG, LLP PHELAN HALLINAN & SCHMIEG, LLP BY: MICHELE M. BRADFORD, ESQUlRE Identification No. 69849 One Penn Center At Suburban Station 1617 JohnF. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 ATTORNEY FOR PLAINTWF W ACHOVIA BANK, N.A. F/KJ A FIRST UNION NATIONAL BANK : COURT OF COMMON PLEAS : CNIL DNISION Plaintiff : CUMBERLAND County vs. JOSEPH W. MIHOLIC : No. 05-2325 Defendant CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing Exceptions to Sheriff s Sale was served by regular mail on: JOSEPH W. MIHOLIC 21 Kingswood Drive Chambersburg, P A 17201 Member 1 st Federal Credit Union 5000 Louise Drive Mechanicsburg, P A 17055 Cumberland County Sheriffs Office 1 Courthouse Square Carlisle, P A 17013 Respectfully submitted, Date: Januarv 13. 2006 ~ {~) pl1- A PHELAN HALI.INAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPIIIA, PAl 91 03 ill5) 563-7000 ._____~ WACHOVIA flANK N.A., F/K/A FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE. MILW AUKEE, WI 53224 ATroRNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION v. TERM NO. O~ - oU.Z5 C;u:l ~kJ CUMBERLAND COUNTY Plaintiff JOSEPH W MnIOLlC 21 KINGSWOOD DRIVE MECHAlNCSBURG, P A 17055 '" c.:) <';;::;J c.n 3-: :D" -< I U> o ~;~ Defendant CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECI~OSURE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or rclief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LA WYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMA nON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBl.E PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9 I 08 tl certity ,)'IE; We ~el'a Je a true 2\1'1:: ~\th\l'l to , the ct copy C'>I corre . . t iecO::C\ .. .. original tIled 0 ND ?HE.iJ\\'o FEOERMM-l f.\ UF' ~ "- MAN AND Pr" fE~RNEY FILE Cu. " PLEASE RETURN File #: 116073 o -fl .-1 1'~ ;Il -,Ii.' , ....'c:;' S:~2:-) --'---1- ~ ;,jr'~< /-. .- ~~3;'n :D .< -" CJ c..) co PHELAN HALLINAN & SCHMIEG, LLP LA WRENn: T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (1l5) 563c7000 __ ATTORNEY FOR PLAINTIFF Plaintiff COURT OF COMMON PLEAS CIVIL DIVISION TERM W ACHOVIA BANK N.A., FIKlA FIRST UNION NATIONAL BANK 11200 WEST PARKLAND AVE. MILWAUKEE, WI 53224 v. NO. CUMBERLAND COUNTY JOSEPH W. MIHOLIC 21 KINGSWOODDRIVE MEClIAINCSflURG, P A 17055 Defendant CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECI~OSURE NOTICE You have been sned in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearanec personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proeeed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by Ihe plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PAl 70 I 3 (800)990-9108 IF TillS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U,S,c' ~ 1692 et seq, (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF, IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE, THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT, EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMnAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU, YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. I. Plaintiff is W ACHOVIA BANK NA, FlKI A FIRST UNION NATIONAL flANK 11200 WEST PARKLAND AVE. MILWAUKEE, WI 53224 2. The name(s) and last known address(es) of the Defendant(s) are: JOSEPH W. MIHOLIC 21 KINGSWOOD DRlVE MECHAINCSBURG, P A 17055 who is/are thc mortgagor(s) and real owner(s) of the property hereinafter described. 3. On 10114/1982 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to CUMBERLAND V ALLEY SAVINGS & LOAN ASSOCIATION which mortgage is recorded in the Office of the Reeorder of CUMBERLAND County, in Mortgage Book: 715, Page: 731. PLAINTIFF is now thc legal owner of the mortgage and is in the process of formalizing an assignment of same. 4. The premises subjeet to said mortgage is deseribed as attaehed. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 0 I/O 1/2005 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire prineipal balance and all interest due thereon are collectible forthwith. 6. The following amounts are due On the mortgage: Principal Balance Interest 12/0 l!2004 through 05103/2005 (Per Diem $1 .84) Attorney's Fees Cumulative Late Charges 10114/1982 to 05103/2005 Cost of Suit and Tide Search Subtotal $17,178.86 283.36 1,250.00 5343 $ 550.00 $ 19,315.65 Escrow Credit Deficit Subtotal 000 561.44 $ 561.41 TOTAL $ 19,877.09 7. The attorney's fees set forth above are in conformity with the mortgage documents and Pennsylvania law, and will be collected in the event of a third party purehaser at Sheriffs Sale. If the Mortgage is reinstated prior to the Sale, reasonable attorney's fees will be eharged. 8. Notice ofIntention to Foreclose as set forth in Act 6 ofl974, Notice of Homeowner's Emergency Assistanee Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit eounscling agency, or haslhave been denied assistance by the Pennsylvania Housing Finance Agency. 9. This action does noI come under Act 6 of 1974 beeause the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $ ] 9,877.09, togetheT with interesI from 05/0312005 at the rate of $1.84 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. By: PHELAN HALLINAN & SCHMIEG, LLP :J- \S~< /~~an LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land, situate in Meehanicsburg, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the Northern side of Kingswood Drive which point is also thc dividing line of Lots Nos. 20 and 21, Block D, on the hereinafter mentioned Plan of Lots; thence along said dividing line North 10 degrees 23 minutes West a distanee of 119.98 feet to a point at the dividing line of Lot No. 20, Block C, and Lot No. 14, Block D; thence along said dividing lines North 79 degrees 37 minutes East 70.0 feet to a point; thence along the dividing line of Lots Nos. 20 and 19, Block D, on the hereinafter mentioned Plan of Lots South 10 degrees 23 minutes Fast a distanee of 119.98 fcet to a point on the Northern side of Kingswood Drive; thence along the Northern side of Kingswood Drive South 79 degrees 37 minutes West a distance of70.0 feet to a point and place of BEGINNING. BEING Lot No. 20, Block D, on the Final Plan of Part of Blocks B, C, D, G and II, Wynnewood Park as recorded in the Of/Ice of the Recorder of Deeds in and for Cumberland County in Plan Book 30, Page 116. UNDER AND SUBJECT to a 25 feet building set back line. BEING THE SAME PREMISES which W.D.C. Inc., a Pennsylvania Corporation, by its Deed dated January 20, 1980, and reeorded July 15, 1982, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 29 V, Page 563, granted and conveyed unto Steven M. Claus and Jeanette M. Claus, his wife. PREMISES: 21 KINGSWOOD DRIVE VERlFICA TION FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and or the verification could not be obtained within the time allowed for the filing of the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P, 1024 ( c ), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of its knowledge, information and belief. Furthermore, it is counsel's intention to substitute a verification from Plaintiff as soon as it is received by counsel. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C. S. Sec. 4904 relating to unsworn falsifications to authorities, ~J~ Francis S. Hallinan, Esquire Attorney for Plaintiff DATE: Q ~3 \5 (./"" . t-xhd);t 13 ,. i'HF:L\:i HALLINAN & SCHMIEG, L.L.P, H,: DANIELG,SCHMIEG hJentHkation No. 62205 Attorney for Plaintiff n:w l'E'iN CENTER AT SUBURBAN STATION ~H!N F. KENNEDY BLVD., SillTE 1400 1'1Jl1..\DELI'HIA, PA 19103-1814 L1J_~L5i>2:JOOO W,CllO\'IA BANK, N.A, FIKIA FIRST UNION 'i.\ nO'\.\L BANK II20U WEST PARKLAND AVENUE Mil \\ .\iiKEE, WI 53224 ...., CUMBERLAND COUNTt; ~ COURT OF COMMONiltJ'A&..... fT!f':- c: ::-:::-. z Zl:" N U)",,- \.D ~f; ~(i 5: f~ ~c_~~ CJ :z ~ .- .r- CIVIL DIVISION Plaintiff, \. NO, 05-2325 JOSF.I'H W. MIHOLIC "" , Defendant(s), ~'\ <(.. ,,<:s , PRAECIPE FOR IN REM JUDGMENT FOR FAILU ~~~ S<;./~~/ . ~ ~{y~ ANSWER AND ASSESSMENT OF DAM TO TIi, PROTHONOTARY: o ., ~'T1 mr- -om :vO 01 :--i ~'f~ _T.:_n 0- '~7() ::~')rn :::; r:". :"1) -< Kindly enter an in rem judgment in favor of the Plaintiff and against JOSEPH W, MIHOLIC , Defenchnt(s) for failure to file an Answer to Plaintiff's Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess Plaintiff's damages as follows: As set forth in Complaint interest from 5/4/05 to 6/17/05 TOTAL $19,877.09 $82.80 $19,959,89 ~ <,::'i ,: ' .:.....,.;~ I hereby ce~~~~)i~ addresses of the Plaintiff and Defendant(sJ~~ass.~q,wn above, and (2) that nol1ce ha~~~~'in accordance With Rule 237.1, copy attached.\fi :'/ ~7\'X{,(f 1 DAMAGES ARE HEREBY ASSESSED AS INDlCAT DATL )lu)~ ':JCj ~D&5 I (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSt;IU') P,R.C.P.3180-3183 W ACHOVIA BANK, N,A, F/KJA FIRST UNION NATIONAL BANK Plaintiff, o ~ ~; ~ -"lilT C- f'"nrT C Z::; z ti~:.~. N ?iO: \D <~. ~~: ;. ~$ <v" ~ ((:.V ~ ~~ ~~ '^~ <if $19,959.8~-~v No, 05-2325 v, JOSEPH W. MIHOLIC Defendant(s), ;A ..,,<.' TO THE DIRECToS~ THE OFFICE OF THE PROTHONOTARY: '<. -, ~ ..'i,_ ~_", .~..., -. . ..... '.. #~i /,.,) ,'"<,f. . _"\':::",,l, Issue writ n&:;;l,:~lition in the above matter: ~;~(>: ' ,.:;:f.' IV" ",-"" t,. k' "/ ,- '". (~,-, Amo'tnt rJue Interest from 6/17/05 to DECEMBER 7, 2005 (per diem -$3.28) TOTAL $20,527.33 $597.44 and Cost" \C1-\;"v\S IEL G. SCHMI , ESQUIRE / One Penn Center at Suburban Station C.' 1617 John F. Kennedy Boulevard, Suite \4" Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: .A ~ G~ <<;,~ ~^,.::s' ~~ Plea~$ description of property. No. ^~""!J ~: <t-' C.J\. \ IMPORTANT NOTICE: This property is sold at the directi6~ plaintiff. It may not be sold in the absence of a represe the plaintiff at the Sheriff's Sale, The sale must be po stayed in the event that a representative of the plaintif present at the sale. ". ::IC C) o --n ~ m"Tl ,. -am :D9 Oc' :::.1 ~::! " c5~} ..,.t.J om ---~~ :'b -< tx/l) b ~+ L SCHEDULE OF DISTRIBUTION SALE NO. 37 Date filed: January 06, 2006 Writ No. 2005-2325 Civil Term Wachovia Bank, N,A., flk/a First Union National Bank VS Joseph W, Miholic 21 Kingswood Drive Mechanicsburg, PA 17055 Sale Date: Buyer: Bid Price: December 7, 2005 Central Penn Property Services, Inc, $121,000,00 Real Debt: Interest: Attorney Costs: $19,959.89 597,44 117.04 Total: $20,674.37 DISTRIBUTION: Receipts: Cash on account (09/06/2005): Cash on account (12/07/2005): Cash on account (12/21/2005): $ 1,500,00 12,100,00 114,878,60 Total Receipts: $128,478.60 Disbursements: Sheriffs Costs Legal Search State Transfer Tax Local Transfer Tax Barry Heckard, Tax Collector Mechanicsburg Borough Attorney Daniel Schmieg Wachovia Bank Members 1st Federal Credit Union Discover Bank Writ No, 2005-5049 ABC Fuel Oil Co" Inc, Joseph Miholic Total Disbursements: Balance for distribution: So Answers: C~..~~~~ R. Thomas Kline Sheriff $ 3,346,52 200,00 1,679.30 1,679.30 758.18 259,60 1,500,00 20,674.37 25,551.24 11,305,91 956.90 60,567.28 ($128,478.60) 0.00 VERIFICATION I, Michele M. Bradford, Esquire, hereby state that I am the attorney for the Plaintiff herein and am authorized to make this verification. I hereby verify that the information contained in Plaintiffs Exceptions to Sheriffs Sale Distribution Pursuant to Pa.R.C.P" 3136( d) is true and correct to the best of my knowledge, information and belief. I am aware that this verification is made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. Respectfully submitted, Date: January 13, 2006 , (/ ..--\ / . ' (,~; Phelan, Hallinan & Schmieg, LLP. Michele M, Bradford, Esquire Identification No. 69849 Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 (215) 563-7000 Attorney for Plaintiff Wachovia Bank, N,A, fjkja First Union National Bank Court of Common Pleas Civil Division v, Cumberland County Joseph W, Miholic No, 05-2325 PRAECIPE TO WITHDRAW MOTION FOR ADDITIONAL DISTRIBUTION OF SALE PROCEEDS To the PROTHONOTARY: Kindly withdraw Plaintiffs Motion for Additional Distribution of Sale proceeds filed on January 10, 2006, in the above captioned matter. January 13,2006 /'Y)J'vc./L-7.Jf Q~ Miehele M. Bradford, Esquire Attorney for Plaintiff >-) , ,", '1" (p. -,-', '," '-" WACHOVIA BANK, N.A. f/k/a FIRST UNION NATIONAL BANK PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOSEPH W. MIHOLlC DEFENDANT 05-2325 CIVIL ORDER OF COURT AND NOW, this 10TH day of February, 2006, upon consideration of the foregoing petition, IT IS HEREBY ORDERED that: (1) A rule is issued upon the defendants to show cause why the plaintiff is not entitled to the relief requested; (2) The defendants shall file an answer to the petition within twenty days of service upon the defendants; (3) The petition shall be decided under Pa.R.C.P. No. 206.7; (4) An evidentiary hearing on disputed issues of material fact shall be held on the 1st day of March, 2006, at 9:00 a.m. in Courtroom NO.5 of the Cumberland County Courthouse. By the Court, M~~,~t Michele M. Bradford, Esquire Attorney for Plaintiff 'f- /:s - ()I.t /I ~ L~) ~-tL- fit;- Joseph W. Miholic Defendant 21 Kingswood Drive Mechanicsburg, PA 17055 bas ) ~,Co~ ~ ' ['&to, Fe. (,(.. '\S :\}\ ("" (,V\' ,:., \ <2:,j :\0 - ----- WACHOVIA BANK, N.A. flk/a : IN THE COURT OF COMMON PLEAS OF FIRST UNION NATIONAL BANK : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. JOSEPH W. MIHOLlC DEFENDANT : 05-2325 CIVIL ORDER OF COURT AND NOW, this 5th day of May, 2006, upon consideration of Plaintiffs Exceptions to Sheriffs Sale Distribution Pursuant to Pa,R,C.P, 3136(d) and the Defendant having failed to file an Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that said Exceptions are granted and that the Sheriff is hereby directed to issue a revised Schedule of Distribution providing for the balance of the proceeds realized from the sale be paid first for the taxes and costs as outlined in the proposed Schedule of Distribution, then distribute the sum of $26,928.12 to the executing Plaintiff by and through its attorney, Phelan, Hallinan and Schmieg, LLP, By the Court, ~n, Hallinan and Schmieg, LLP Michele M. Bradford, Esquire Attomey for Plaintiff ,~w\ M, L. Ebert, Jr., \ \ J, Cumberland County Sheriffs Department~ "/"L ~ I tr pc. L(. ~4't~VJtJIp bas -'0 U' Ms '.\ \fIN\lA1ASNN3d AlNn08 nt~1ljj8i^1m 8S :8 WV S- AVW 900Z Al:N10NOHlOl:ld 3Hl ::10 381:HQ-{)31t:l COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND } SS: I, Robert P. Ziegler, Recorder of Deeds in and for said County and State do hereby certify that the Sheriffs Deed in which Central Penn Property Serv Inc is the grantee the same having been sold to said grantee on the 7th day ofDec AD., 2005, under and by virtue of a writ Execution issued on the 29th day of June, AD., 2005, out of the Court of Common Pleas of said County as of Civil Term, 2005 Number 2325, at the suit ofWachovia Bank N A against Joseph W Miholic is duly recorded in Deed Book No, 273, Page 521. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this q day of ,~. ,AD. J-cJO(, ~ 12 ~, d'Jt'..1-~ I ~ Recorder of Deeds "-dorolDoM. ~Q!tunlIr.I Mr c:o..... '" I!lrjbt 1hI1'hl1lltndilW=- ""; ~ , Wachovia Bank, N,A, flk/a First Union National Bank VS Joseph W, Miholic The Court of Common Pleas of Cumberland County, Pennsylvania Writ No, 2005-2325 Civil Term Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on October 06, 2005 at 5:21 o'clock PM, he served a true copy of the within Real Estate Writ, Notice of Sheriffs Sale and Description, in the above entitled action, upon the within named defendant, to wit: Joseph W, Miholic, by making known unto Joseph Miholic, personally, at his place of employment, ABC Bowling, 6454 Carlisle Pike, MechaIDcsburg, Cumberland County, Pennsylvania, its contents and at the same time handing to him personally the said true and correct copy of the same, Douglas Ruzanski, Deputy Sheriff, who being duly sworn according to law, states that on October 13,2005 at 11 :35 o'clock AM" he posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Joseph W, Miholic located at 21 Kingswood Drive, Mechanicsburg, Pennsylvania, according to law, R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendant, to wit: Joseph W, Miholic, by regular mail to his last known address of21 Kingswood Drive, Mechanicsburg, P A 17055, This letter was mailed under the date of October 11, 2005 and never returned to the Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states that after due and legal notice had been given according to law, he exposed the within described premises at public venue or outcry at the Courthouse, Carlisle, Cumberland County, Pennsylvania on December 7, 2005 at 10:00 o'clock A.M, He sold the same for the sum of$121,000,OO to Central Penn Property Services, !nc, It being the highest bid and best price received for the same, Central Penn Property Services, Inc. of 100 South 7th Street, Akron, PA 17501, being the buyer in this execution, paid to SheriffR. Thomas Kline the sum of$126,978,60, Sheriffs Costs: Docketing Poundage Posting Bills Advertising Acknowledging Deed Auctioneer Law Library Prothonotary Mileage $30,00 2,420,00 15.00 15,00 30,00 10,00 .50 1.00 19,20 . Certified Mail Levy Surcharge Postage Law Journal Patriot News Share of Bills Distribution of Proceeds Sheriffs Deed 2.33 15,00 20,00 ,74 365,00 317.36 20.89 25,00 39.50 $3,346,52 5/;; ~o(, Cfv. Sworn and subscribed to before me This _ day of 2005, A,D. Prothonotary ~~~~ R. Thomas Kline, Sheriff BY Jo~~ Real Estat ergeant ~pA. u1'l 30. ~ [. eJe.. (f 'I 0 'II I&. /1 r;;J1, ., , ".\CHO\'IA BANK, N.A. FfK1A FIRSl'UNION .'.\TlO:><\L BANK CUMBERLAND COUNTY . , } Plaintiff, COURT OF COMMON PLEAS \', CIVIL DIVISION iO,,}!'I' ;.\'. YIIHOLIC NO. 05-2325 Defendant(s), AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. I) \y. \C1JOVIA BANK. N.A. FIKJA FIRST UNION NATIONAL BANK, Plaintiff in the above action, .,\ d, ,11\Orney, DANIEL G, SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of i. :c,UI ion was filed the following information concerning the real property located at,ll l:\!!\(!~~OOD DRIVE, MECHANICSBURG, PA 17055. :,,,\1: and address ofOwner(s) orreputed Owner(s): n\" Last Known Address (if address cannot be reasonably ascertained, please indicate) J( }'WPII W. MIHOLlC 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 '-.,." nc and address of Defendant(s) in the judgment: :-:"ltH' as above ) Name: and last known address of every judgment creditor whose judgment is a record lien on the real PTOpcrt y to be sold: "hnJ(. Last Known Address (if address cannot be reasonably ascertained, please indicate) ,"'ont' 1\H.\'iBER 1ST FEDERAL CREDIT UNION 5000 LOUISE DRIVE MECHANICSBURG, PA 17055 ~ I . : N ,if\(; and address of last recorded holder of every mortgage of record: ..,.. ~ ,: \ i\ t' Last Known Address (if address cannot be reasonably ascertained, please indicate) :\lnne " \i .""i and address of every other person who has any record lien on the property: ~"",lrnc Last Known Address (if address cannot be reasonably ascertained, please indicate) :"~OHf 'O:amc and address of every other person who has any record interest in the property and whose ,ie'U'i'.\ may be affected by the sale, ',':,l, Last Known Address (if address cannot be reasonably ascertained, please indicate) :'noe ',' :<ame and address of every other person of whom the plaintiff has knowledge who has any interest in lb' 1'1 ('pcrty which may be affected by the sale: N:,niC Last Known Address (if address cannot be reasonably ascertained, please indicate) j dLml/Oecupant 21 KINGSWOOD DRIVE MECHANICSBURG, PA 17055 I h" i ,'s! i(' Relations of Cumberland County 13 North Hanover Street Carlisle, P A 17013 ('II Illmon wealth of Pennsylvania Department of Welfare PO Box 2675 Harrisburg, P A 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal :,1,. iw!cdge or information and belief. I understand that false statements herein are made subject to the :,',na1tics ofl8 Pa, C.S, Sec, 4904 relating to unsworn falsification to authorities. I uJl"-.2L 2005 1)\ n' c -- \~~ G. SCHM E Attorney for Plaintiff , ' . IIV 'fOliA BANK,N,A.F/KIAFIRSTVNION >>\ r"!!V\:~\l._ HAl\;T}{ CUMBERLAND COUNTY Plaintiff, No, 05-2325 IOSP'if w,lVHHOLIC Defendant(s). June 21, 2005 '---;, ~OSEPH W. MIHOLIC 2) KINGSWOOD DRIVE !'rILCHANICSBURG, PA 17055 ,.. ,-' . 'i'if!!S FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION ilJ LL BE USED FOR THA T PURPOSE. IF YOU HA VE PREVIOUSLY RECEIVED A DISCHARGE IN P{,IT AND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE 11'7 TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY." ,F'.4.i Your house (real estate) at, 21 KINGSWOOD DRIVE, MECHANICSBVRG, PA 17055, is .'i,Xi to be sold at the Sheriff's Sale on DECEMBER 7, 2005 at 10:00 a.m. in the Cumber/and Ii;]t-. Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of ).l.'~.:;:9,82 obtained by W ACHOVIA BANK. N.A. F/K/A FIRST UNION NATIONAL BANK (the ''10lic.,!gee) against you. In the event the sale is continued, an announcement will be made at said sale in ':'H1'rii,m,e with Pa,R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS v :)l)'l~\ Y !3E ABLE TO PREVENT THIS SHERWF'S SALE To prevent this Sheriff's Sale, you must take immediate action: 1 .. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due, To find out how much you must pay, you may call: (215) 563-7000. " ~. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause, , J. You may also be able to stop the sale through other legal proceedings, You may need an attorney to assert your rights, The sooner you contact one, the more chance you will have of stopping the sale, (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1, If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder, You may find out the price bid by calling (215) 563-7000, 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale, To find out if this has happened, you may call (717) 240-6390, 4. Ifthe amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened, 5, You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer, At that time, the buyer may bring legal proceedings to evict you, 6, You may be entitled to a share of the money which was paid for your house, A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale, This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff, It mav not be sold in the absence of a reoresentative of the olaintiff at the Sheriffs Sale, The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale, CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, P A 17013 (717) 249-3166 ." .. {)ESCRlP1'lON ALL THAT CERTAIN piece or parcel of land, situate in Mechllllicsburg, Cumberland County, Pennsylvania, more particularly boundlii(\ and described lIS follows, to wit; BEGINNING at a point 011 the NOI1hem side ofKingswood Drive wbich point is also \he dividing: line of Lots Nos, 20 and 21. Block D, on the hereinafte:rmentloned Plan ofLot!l; thence along said dividing line North 11) degrees 23 minute.s West a dislance of 119,98 fCCllo a point at the dividing: line ofLatNo. 20. BloekC, and LntNo, 14, Bloclc 0; thence along said dividing lines North 79 degrees :n minutes Bast 70.0 feet to a point; thence along lhe dividing line of Lots Nos. 20 and 19 Block 0, on the hereinafter mentiolllii(\ Plan of Lots South 10 degrees 2J minutes Easl a distance 0; 119.98 feel to a point an lite Northern side ofKingswood Drive; lItoooe along die North"'"' side of Kingswood Drive South 7'J delll'lles 37 minutes West a di_ of10.0 reet to a point and place of BEGINNING, BEING LoINo. 20, SloeleD,on the Filll!l Plan ofPartofBloclcs B, C. D, G andH, Wytll\ewood Park WI recordod in the Office ofilie Recorder of Deeds in nnd forCnmberland CQUIlly in Plan Boo,k 30. Pa8l' 116. TITLE TO SAID PRRMISF"S IS VESTED IN Joseph W. MilloUc, Single 1141111 by Deed from Steven M. Claus and JeaneUO M, Claus. his wlCe. by theil' duly cOl1$litullld Attorney-in-facl, Arma F; Miller, dated 10-14-82.reoorded 10-IH2 in Deed Book 29-X, page 979. Premises: 21 Kingswood Drive, Mechanicsburg, P A 17055 . WRIT OF EXECUTION andlor ATT~CHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 05-2325 Civil CIVIL ACTION - LAW TO TBE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due W ACHOVIA BANK, N,A, FIKJA FIRST UNION NATIONAL BANK, Plaintiff (s) From JOSEPH W, MmOLIC (I) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify himlher that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $19,959.89 L.L. $,50 Interest FROM 6/17/05 TO 1217105 (PER DIEM - $3,28) - $597,44 AND COSTS Arty's Comm % Due Prothy $1.00 Arty Paid $117,04 Other Costs Plaintiff Paid Date: JUNE 29, 2005 CURTIS R, LONG (Seal) Proth02 ~ ~ __ By: 0-" f) ~ 2. 'OJ /U Y. Deputy REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQillRE Address: ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F, KENNEDY BOULEVARD, SillTE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 r-J c::;@ c::v:il ~ ~ tiV\I Real Estate Sale #37 On September 07, 2005 the Sherifflevied upon the defendant's interest in the real property situated in Mechanicsburg Borough, Cumberland County, P A Known and numbered as 21 Kingwood Drive, Mechanicsburg, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein, Date: September 07, 2005 By: Real Estate Sergeant Lt.:\ d bZ 1'\(\\ ~ijijl ,. " .',J'.'..i'0Id,j 'vd '),lr,i'lhj~J~:,i 't 11~\~3C :HI'cl3f{S 3\41 :\0 -' . .' . ,.. THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot- News and The Sunday Patriot-News newspapers of general eirculation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever SInce; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday! Metro editions which appeared in the 25th day(s) of October and the 1st and 8th day(s) of November 2005. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the offiee for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY CUMBERLAND COUNTY SHERIFFS OFFICE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA. 17013 . . .. PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No, 587, approved May 16,1929), P, 1.1784 COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, VIZ: October 14,21,28,2005 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true, REAL ESTATE 8ALIt 11'0, 37 Writ No. 2005-2325 Clvll Wachovla Bank, N.A f/k/a First Union National Bank vs. Joseph W. Miholic Atty.: Dantel Schmteg DESCRIPTION ALL THAT CERTAtN piece or pared ofland, situate In Mechantcs- burg Borough. Cumbertand County. Pennsylvania. more particularly bounded and descrlbed as follows. to wit: BEGINNING at a point on the Northern side of Kingswood Drive which point is also the dividing line of Lots Nos. 20 and 21, Block D. on the hereinafter mentioned Plan -& ,....._. .1.._____ ...~ C>""~ A-hrlrtind. SWORN TO AND SUBSCRIBED before me this 28 day of October, 2005 NOTA AL SEAL LOIS E. SNYDER. Notary Public Carlisle Boro. Cumberland C0lJn~f , My Commission Exp'res March 5. 2009 """''''---_._,...~. '" , Disbursements: Sheriff's Costs Legal Search State Transfer Tax Local Transfer Tax Barry Heckard, Tax Collector Borough of Mechanicsburg Attorney Daniel Schmieg Wachovia Bank Members 1st Federal Credit Union Discover Bank Writ No. 2005-5049 ABC Fuel Oil Co., mc, Joseph Miholic Total Disbursements: Balance for distribution: So Answers: 0<?? l~C~~-:.R R. Thomas Kline Sheriff $ 3,346,52 200.00 1,679,30 1,679,30 758.18 259,60 1,500.00 26,928.12 24,905.99 11,305,91 956,90 54,958,78 ($128,478.60) 0.00 ~ . AMENDED SCHEDULE OF DISTRIBUTION SALE NO. 37 Date Filed: May 15,2006 Writ No, 2005-2325 Civil Term Wachovia Bank, N,A" tIkIa First Union National Bank VS Joseph W, Miholic 21 Kingswood Drive Mechanicsburg, P A 17055 Sale Date: Buyer: Bid Price: December 7, 2005 Central Penn Property Services, Inc, $121,000,00 Real Debt: Interest: Attorney Costs: $19,959,89 597.44 117,04 Total: $20,674.37 Per Court Order dated May 5, 2006 - $26,928,12 DISTRIBUTION: Receipts: Cash on account (09/06/2005): Cash on account (12/07/2005): Cash on account (12/21/2005): $ 1,500,00 12,100,00 114,878,60 Total Receipts: $128,478.60 . f' , , . SCHEDULE OF DISTRIBUTION SALE NO. 37 Date filed: January 06, 2006 Writ No, 2005-2325 Civil Term Wachovia Bank, N,A" f/k/a first Union National Bank VS Joseph W, Miholic 21 Kingswood Drive Mechanicsburg, PA 17055 Sale Date: Buyer: Bid Price: December 7, 2005 Central Penn Property Services, Inc, $121,000.00 Real Debt: Interest: Attorney Costs: $19,959,89 597.44 117,04 Total: $20,674.37 DISTRIBUTION: Receipts: Cash on account (09/06/2005): Cash on account (12/07/2005): Cash on account (12/21/2005): $ 1,500,00 12,100,00 114,878,60 Total Receipts: $128,478.60 Disbursements: Sheriffs Costs Legal Search State Transfer Tax Local Transfer Tax Barry Heckard, Tax Collector Mechanicsburg Borough Attorney Daniel Schmieg Wachovia Bank Members 1st Federal Credit Union Discover Bank Writ No, 2005-5049 ABC Fuel Oil Co" Inc, Joseph Miholic Total Disbursements: Balance for distribution: So Answers: C~ 1-t:~~~ R. Thomas Kline Sheriff $ 3,346.52 200,00 1,679,30 1,679,30 758.18 259,60 1,500,00 20,674.37 25,551.24 11,305,91 956,90 60,567,28 ($128,478.60) 0.00 . . '\. TITLE REPORT THE PREMISES ENDORSED HEREON ARE SUBJECT TO THE FOLLOWING ITEMS, WHICH WILL BE EXCEPTED IN THE POLICY UNLESS SATISFACTORY EVIDENCE PERMITTING THEIR REMOVAL IS PRODUCED, SHERIFF SALE NO. 37 Held Wednesday, December 7, 2005 Date: December 7, 2005 TAXES: Receipts for all taxes for the years 2002 to 2004 inclusive, Taxes for the current year 2005. WATER RENT: SEWER RENT Company assumes no liability for private supply of water or sewer, Receipts to be produced if services are lienable. MECHANICS' AND Possible unfiled Mechanics Liens and Municipal Claims, MUNICIPAL CLAIMS MORTGAGES: Listed Under Other Exceptions Below, JUDGMENTS: Listed Under Other Exceptions Below. INSTRUMENTS TO BE PRODUCED: Deed from Cumberland County Sheriff to dated , 2006, and recorded , 2006, in Cumberland County Deed Book , Page RECITAL: Being the same premises which Steven M. Claus and Jeanette M, Claus, by deed dated October 14, 1982 and recorded October 14, 1982 in the Office of the Recorder of Deeds in and for Cumberland County, at Carlisle Pennsylvania, in Deed Book "X," Volume 29, Page 979, granted and conveyed to Joseph W, Miholic, single man, OTHER EXCEPTIONS: 1, The identity and legal competency of parties at the closing of this title should be established to the satisfaction of the closing attorney acting for this Company, 2, Rights or claims of parties in possession, if any, other than the owner, 3, Unrecorded easements, discrepancies or conflicts in boundary lines, shortage in area and encroachments which an accurate and complete survey would disclose, 4, Payment of State and local Real Estate Transfer Taxes, if required, 5. Public and private rights in the roadbed of Kingswood Drive, 6. Building conditions, easements and restrictions as shown on or set forth with the Final Plan of part of Block "B, C, D, G & H" Wynnewood Park recorded in Plan Book 30, Page 116. 7. Mortgage in the amount of $57,000,00 given Joseph W, Miholic to Cumberland Valley Savings and Loan Association dated October 14, 1982 and recorded October 14, 1982, in Mortgage Book 715, Page 731. Complaint filed by Wachovia Bank, N,A, formerly known as First Union National Bank as Plaintiff against Joseph W, Miholic as Defendant on May 6, 2005, in the Office of the Prothonotary of Cumberland County to File No, 2005-2325, Judgment in the amount of $19,959,89 entered June 29, 2005, 9. Mortgage in the amount of $32,993.00 given by Joseph W, Miholic to Members First Federal Credit Union dated September 11,2002 and recorded September 12,2002 in Mortgage Book 1772, Page 1234, 10. Under and subject to 20-foot setback lines as set forth in Deed recorded in Deed Book "X," Volume 29, Page CJ79, 11. Judgment in the amount of $11,117.91 entered by Discover Bank as Plaintiff against Joseph Miholic as Defendant, in the Office of the Prothonotary of Cumberland County to File No. 2005-5049, 12. Judgment in the amount of $810,03 entered by ABC Fuel Oil Company as Plaintiff against Joseph W, Miholic as Defendant in the Office of the Prothonotary of Cumberland County on August 12,2005 to File No, 2005-4128, 13. Rights granted to Pennsylvania Power and Light Company by instrument recorded November 19, lCJ75 in Miscellaneous Record Book 218, Page 580, 14. Rights granted to Pennsylvania Power and Light Company by instrument recorded April 27, lCJ77 in Miscellaneous Record Book 227, Page 946, 15, Rights granted to West Shore TV Cable Company by instrument recorded October 15, lCJ79 in Miscellaneous Record Book 247, Page 743, 16. Rights granted to Pennsylvania Power and Light Company by instrument recorded in Miscellaneous Record Book 141, Page 517, 17, Rights granted to Bell Telephone Company of Pennsylvania by instrument recorded in Miscellaneous Record Book 143, Page 27, 18. Rights granted to Pennsylvania Power and Light Company and Bell Telephone Company of Pennsylvania by instrument recorded in Miscellaneous Record Book 218, Page 580, " 19, Rights granted to Pennsylvania Power and Light Company and Bell Telephone Company of Pennsylvania by instrument recorded in Miscellaneous Record Book 227, Page 946, 20, Satisfactory evidence to be produced that the holders of all liens and encumbrances intended to be divested by subject Sheriff Sale were given proper notice. 21. Real estate taxes accruing on and after January 1,2006 not yet due and payable, It is to be noted that no search of Domestic Relations Records has been made to determine support arrearages regarding House Bill 1412, Act 58 of 1997, nor has any search been made for environmental liens in Federal District Court. R bert G, Frey, Agent Note: This Title Report shall not be valid or b' ding until countersigned by an authorized signa \- REAL ESTATE SALE NO, 37 Wrtt No. 2005-2325 Civil Wachovla Bank, N.A. f(k/a First Union National Bank vs. Joseph W. Mlholic Atty.: Daniel Schmleg DESCRIPTION ALL THAT CERTAIN piece or pared of land, situate in Mechanlcs- hurg Borough, Cumberland County. Pennsylvania, more particularly bounded and descIibed as follows. to wit: BEGINNING at a point on the Northern side of Klngswood Drive which point Is also the divlding line of Lots Nos. 20 and 21, Block D, on the hereinafter mentioned Plan of Lots: thence along said divlding line North 10 degrees 23 minutes West a distance of 119.98 feet to a point at the divlding line of Lot No. 20, Block C, and Lot No. 14, Block D: thence along said divlding lines North 79 degrees 37 minutes East 70.0 feet to a point: thence along the divlding line of Lots Nos. 20 and 19. Block D. on the hereinafter mentioned Plan of Lots South 10 degrees 23 minutes East a distance of 119.98 feet to a point on the Northern side of KingsWQod Drive; thence along the Northern side of Kingswood Drive South 79 degrees 37 minutes West a distance of 70.0 feet to a point and place of BEGIN- NING. BEING Lot No. 20, Block D. on the Final Plan of Part of Blocks a, C. D. G and H, Wynnewood Park as recorded in the Office of the Re- corder of De,eds in and for Cumberland County in Plan Book 30, Page 116. TITLE TO SAID PREMISES IS VESTED IN Joseph W. MiholIc, Single Man by Deed from Steven M. Claus and Jeanette M. Claus. his wife. by their duly constituted At- torney-m-fact, Anna F. Miller, dated 10-14-82. recorded 10-14-82 in Deed Book 29-X, p.age 979. Premises: 21 Kingswood Drive, Mechanicsburg, PA 17055.